Citation Nr: 1759923 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-21 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for peripheral artery disease (PAD) and peripheral neuropathy, to include as secondary to in-service cold exposure. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1942 to October 1945. He died in September 2013. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in October 2012 and June 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The RO was informed of the Veteran's death in September 2013 and the Veteran's surviving spouse filed a motion for substitution as the appellant in the place of the Veteran in October 2013. In a September 2014, the RO determined that the Veteran's surviving spouse, referred to as the appellant, qualified as a proper substituted claimant and was therefore substituted for the deceased Veteran for the purpose of pursuing the above-referenced service connection claim for PAD/peripheral neuropathy. In May 2017, the Board remanded the service connection claim on appeal for additional development. Thereafter, the appellant withdrew her request for a Board videoconference hearing in June 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Resolving all doubt in the appellant's favor, the Veteran's diagnosed PAD/peripheral neuropathy was causally related to events during active service. 2. The Veteran died in September 2013; the corrected death certificate listed the immediate cause of death as coronary artery disease (CAD) and congestive heart failure (CHF) due to or as a consequence of unspecified natural causes. Other significant conditions contributing to death but not resulting in underlying cause of death were listed as aspiration pneumonia - organism undetermined. 3. At the time of the Veteran's death, service connection was established for posttraumatic stress disorder (PTSD), rated as 70 percent disabling. Entitlement to service connection for PAD/peripheral neuropathy has been awarded in this decision. 4. The most probative evidence of record does not demonstrate that the Veteran's cause of death was etiologically related to his active military service or that a disability incurred in or aggravated by active military service was the principal or contributory cause of his death. 5. The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PAD/peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 101, 1110, 1111, 1131, 1137, 1310, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.312 (2017). 3. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board is taking action favorable to the appellant by granting entitlement to service connection for PAD/peripheral neuropathy. As such, that portion of the decision poses no risk of prejudice to her. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). With respect to the appellant's claims for entitlement to service connection for the cause of the Veteran's death and DIC benefits under 38 U.S.C. § 1318, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by a letter dated in January 2014. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). In addition, the duty to assist the appellant has also been satisfied in this case. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). As an initial matter, the majority of the Veteran's service treatment records are unavailable. In a 2010 memorandum, VA detailed its attempts to obtain the Veteran's service treatment records, concluding that the service treatment records were unavailable for review. A June 2014 response from National Personnel Records Center (NPRC) detailed that the Veteran's service treatment records were destroyed in the 1973 NPRC fire. It was further noted that Surgeon General Office reports (SGOs) were obtained from an alternate records source. When service records are lost or missing, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO has obtained the Veteran's available SGO records, service personnel records, VA treatment records, and private treatment records. The appellant has not identified any outstanding pertinent evidence related to the claim for entitlement to service connection for the cause of the Veteran's death. She further acknowledged that attempts to obtain records from numerous past private treatment providers were unsuccessful, as records had been destroyed after seven years. VA medical opinions with respect to the claim on appeal were obtained in March 2016 and April 2017. VA's duty to assist additionally specifically includes providing a medical opinion when necessary if the claim at issue involves disability compensation. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326 (2017); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). To that end, when VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2016 and April 2017 VA medical opinions obtained in this case are more than adequate, as each was predicated on a full reading of the record. In particular, the April 2017 examiner considered the pertinent evidence of record and the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion in this appeal has been met. 38 U.S.C. § 5103A(a) (2012). 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). Service Connection - PAD/Peripheral Neuropathy Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Available SGOs did not reflect any findings or complaints related to peripheral neuropathy or PAD, only non-venereal balanitis. Service personnel records revealed that his military occupational specialty (MOS) was Flight Maintenance Gunner and flew 30 combat missions during 10 months overseas in the European theater. Based on the foregoing, cold weather exposure during service has been conceded for the Veteran. In written statements of record, the Veteran and the appellant have asserted that he served as a waist gunner in subzero temperatures during combat and suffered frostbite in service. It is contended that the in-service cold exposure affected his vascular system, causing numerous vascular problems for many years. The appellant has asserted the Veteran was treated for frostbite upon returning from service, had suffered from neuropathy for most of his life with limitation of function as well as burning, tingling, and numbness in his feet, and had vascular problems with arterial blockages that began in the 1980s. In additional statements, the appellant asserted that when the Veteran returned stateside in 1945 he was hospitalized in an Army hospital in Florida for multiple problems, including frostbite to his feet and toes, cold weather injury problems to his legs, and mental health issues. She further reported that the Veteran had problems with his legs, including neuropathy going back to the late 1940s. It was indicated that starting from the time they were married in 1946, the Veteran complained about numbness, difficulty in standing and walking, and lack of feeling in his feet. The appellant also reported that she observed frostbite scars on the Veteran's toes, feet, and face. She asserted that the Veteran's problems with his feet became worse later in life and he could not stand because he had absolutely no feeling in his feet. She indicated she was always told by doctors that the Veteran's leg and vascular problems were most likely due to the extreme cold weather exposure that resulted in the noticeable frostbite scars on his toes and feet. In a February 2012 private treatment record and March 2012 statement, S. K. H., MSN, ANP/GNP-C, listed assessments including unspecified PAD/peripheral vascular disease as well as neuropathy NOS/mononeuritis of unspecified site. Based on the Veteran's physical examination, review of his history and VA treatment records, review of treatise material (identified as MEDICAL ASPECTS OF COLD WEATHER OPERATION from the U. S. Army Research of Environmental Medicine), and her education on frostbite (including long term complications), the nurse opined that it was more likely than not that the vascular problem and neuropathy, cold weather injuries, and frostbite injuries were related to Veteran's military service during World War II. In two April 2012 VA examination reports, the examiners diagnosed PAD and peripheral neuropathy of the bilateral lower extremities with a date of diagnosis of February 2012. It was noted that the Veteran had been diagnosed with peripheral vascular disease with bilateral diminished peripheral pulses and trophic changes (thin skin, absence of hair, dystrophic nails). The Veteran was noted to use a walker for the past 3 years due to advanced age, frailty, dementia, low back condition, and bilateral knee pain and to have moderate numbness and paresthesias and/or dysesthesias in each lower extremity. After reviewing the record and examining the Veteran, the examiners opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale, the examiner noted that there was no record or proof of a diagnosis of PAD or neuropathy being made in the service and that the Veteran was active military when he was 18 to 21 years old. A July 2012 VA EMG consult revealed generalized peripheral polyneuropathy affecting the lower limbs bilaterally with motor and sensory involvement that was moderate to severe in severity and demyelinating and axonal features present. In a September 2012 VA addendum medical opinion, the April 2012 VA examiner opined that the Veteran's PAD and peripheral neuropathy were less likely as not incurred in or caused by the exposure to cold weather in service. In the cited rationale, the examiner again highlighted that the claimed disorders were diagnosed in 2012 and that the Veteran's history and medical records did not support linkage. It was noted that a cold injury, which would result in PAD or peripheral neuropathy would manifest those conditions sooner, and would not wait to manifest 67 years later. The examiner further commented that the Veteran had multiple diseases, including hyperlipemia, hypertension, transient ischemic attacks, vascular dementia, osteoporosis, thyroid issues, CAD, vitamin D deficiency, renal issues, and generalized muscle weakness. PAD was noted to be caused by buildup of plaque on the arterial walls causing reduced blood flow to the limbs due to narrowed arteries, to be commonly caused by atherosclerosis, and felt to be among other things due to a combination of factors, including smoking, high cholesterol, high triglycerides, or high blood pressure. The examiner concluded that there were factors which would more strongly account for his PAD and peripheral neuropathy, finding that the claimed conditions were not related to the cold exposure during service. In a December 2012 note, a private physician, V. L., M. D., indicated that she agreed with the history taken by S. K. H., MSN, ANP/GNP-C, in February 2012. Additional treatment notes dated in 2013 from V. L., M. D., at Sun West medical facility, showed continued findings of polyneuropathy and chronic PAD. In a February 2013 treatment record, after review of the Veteran's VA history along with physical exam, the physician opined that the Veteran's exposure to cold weather injuries and frostbite probably largely contributed to his history of neuropathy and PVD/PAD. In an August 2014 statement, M. K., M. D., a private physician, concluded, based on his records, all VA records sent to him for review, and cited medical research articles, that the Veteran suffered from peripheral neuropathy and PAD. It was further noted that the Veteran's in-service duties in the Air Force included many repetitive movements over many years, including extreme cold conditions with documentation of frostbite. The physician opined that it was as likely as not that the Veteran's in-service work conditions contributed to the development of the disease process of peripheral neuropathy. In an additional March 2016 VA medical opinion, a VA examiner discussed the prior findings of the April 2012 VA examiner and reiterated that it was less likely that the Veteran's peripheral neuropathy was secondary to his cold exposure. In view of the totality of the evidence, including the Veteran's conceded in-service cold exposure as a Flight Maintenance Gunner who flew 30 combat missions during service, the probative findings that PAD/peripheral neuropathy was related to that in-service cold exposure noted in private medical opinions by three different providers dated in March 2012, February 2013, and August 2014, the equally probative but conflicting findings contained in the April 2012, September 2012, and March 2016 VA medical examinations and opinions, and the consistent and competent assertions that the Veteran suffered from continuous frostbite and lower extremity residuals since 1945, the Board finds that Veteran's PAD/peripheral neuropathy cannot be reasonably disassociated from his active military service. The Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for PAD/peripheral neuropathy is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection - Veteran's Cause of Death In written statements of record, the appellant asserted that the Veteran's service-connected posttraumatic stress disorder (PTSD) was a substantial contributing factor in his death as well as contributed to the development of CAD and CHF, which caused his death. When a veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents. 38 U.S.C. § 1310 (2012). In a claim where service connection was not established for the fatal disability prior to the death of the veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. The Board must determine whether the fatal disorder should have been service-connected. 38 C.F.R. § 3.312 (2017). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312 (2017). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause 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 the service-connected disability casually shared in producing death but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c) (2017). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1) (2017). The Veteran died in September 2013. Prior to death, he was awarded service connection for PTSD, rated as 70 percent disabling. In this decision, the Board has also granted entitlement to service connection for PAD/peripheral neuropathy. His initial certificate of death listed the immediate cause of death as aspiration pneumonia - organism undetermined due to or as a consequence of unspecified natural causes. Other significant conditions contributing to death but not resulting in underlying cause of death were listed as CAD and CHF. A corrected copy of the Veteran's death certificate listed the immediate cause of death as CAD and CHF due to or as a consequence of unspecified natural causes. Other significant conditions contributing to death but not resulting in underlying cause of death were listed aspiration pneumonia - organism undetermined. In the March 2016 VA medical opinion referenced above, the VA examiner commented on the Veteran's cause of death (aspiration pneumonia with contributing factors of CAD and CHF), noting that he did not see how PAD contributed to the Veteran's death. In an April 2017 VA medical opinion, a VA examiner noted her extensive review of the record, including the appellant's assertions and submitted medical treatise evidence. Copies of private treatment records from the Veteran's final hospitalization at Banner Del Webb Medical Center dated in August 2013 were also included in the opinion before he was discharged in September 2013 for hospice services. The examiner acknowledged that current medical evidence was suggestive of a relationship between PTSD and cardiac disease/progression. However, the examiner then opined that there was no evidence to support the theory that this Veteran with significant dementia had significant aggravation of CAD by his PTSD to cause his death due to CAD and CHF. The examiner concluded that there was insufficient evidence to find that the Veteran's PTSD altered his CAD beyond normal progression or acted to materially or substantially result in his death. Service connection for the cause of the Veteran's death is not warranted. As an initial matter, there is no factual basis in the record that any condition listed on the Veteran's death certificate was incurred during service or manifested within a year of his discharge from service in 1945. Significantly, the record does not include any medical evidence or opinion showing a causal relationship between the Veteran's fatal disorders diagnosed years after separation and his active military service. Evidence of record also does not establish that either of the Veteran's service-connected disabilities, PTSD or PAD/peripheral neuropathy, was a primary or contributory cause of his death. In fact, the March 2016 VA examiner did not see how PAD would have contributed to the Veteran's death. The April 2017 VA examiner also specifically concluded that there was insufficient evidence to find that the Veteran's service-connected PTSD acted to materially or substantially result in his death. Furthermore, neither the appellant nor her attorney has presented, identified, or alluded to the existence of any medical opinion that directly contradicts conclusions reached by VA examiners in March 2016 and April 2017. Thus, there is no basis upon which to conclude that either of the Veteran's service-connected disabilities were a primary or contributory cause of his death. 38 C.F.R. § 3.312 (2017). The Board is cognizant that the appellant submitted multiple medical treatise articles describing the relationship between PTSD and cardiac diseases as well as PTSD and physical health. 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 v. West, 11 Vet. App. 509 (1998) (finding that medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, the internet research and medical treatise materials associated with the file are of very little probative value, as they were general in nature, did not specifically relate to the facts and circumstances surrounding this particular case, and were not accompanied by the opinion of any medical expert. In addition, the appellant's statements as to the whether the Veteran's death was caused by or aggravated by a disability incurred during service are not competent evidence, as the appellant is not qualified to draw medical conclusions. Although lay persons are competent to provide opinions on some medical issues and observable symptomatology, the etiology of the Veteran's cause of death falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Based on the medical and lay evidence of record, the Board finds that entitlement to service connection for the cause of the Veteran's death is not warranted. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). DIC under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). At the time of the Veteran's death in September 2013 and many decades after his separation from service in 1945, entitlement to service connection for PTSD, rated 70 percent disabling, and entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), were each awarded from March 11, 2010. The Board notes that even the recent award of service connection for PAD/peripheral neuropathy would not make the Veteran total disabled for a continuous period of at least 10 years immediately preceding death. Furthermore, none of the listed causes of death on his death certificate were service-connected disabilities at the time of his death. It is also undisputed that the Veteran was not a former prisoner of war. Thus, the appellant does not meet the basic eligibility requirements for entitlement to DIC benefits under 38 U.S.C. § 1318 and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER Entitlement to service connection for PAD/peripheral neuropathy is granted. Service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C. § 1318 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs