Citation Nr: 1801223 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-15 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from August 1940 to June 1945. The Veteran died in April 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of this case belongs to the RO in Columbia, South Carolina. In August 2016 the appellant testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. In February 2017, the Board requested a specialist opinion in a letter to the Veterans Health Administration (VHA). This opinion was rendered in April 2017. In October 2017 a letter was sent to the appellant notifying her that an opinion had been received and enclosing that medical opinion. The appellant was notified that she had 60 days to respond. A December 2017 brief from the appellant's representative was received. Accordingly, the Board may proceed to adjudicate the claim on appeal. 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 Veteran died in April 2011; the Death Certificate recorded the Veteran's primary cause of death as end stage renal disease, with subdural hematoma, bacteremia, and chronic obstructive pulmonary disease (COPD) listed as significant contributory causes of death. 2. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling, a gunshot wound of the left arm with deep soft tissue involvement extending to the bone, rated as 20 percent disabling, a gunshot wound scar of the lateral surface of the right foot, rated as 10 percent disabling, and a gunshot wound scar of the left arm, rated as 10 percent disabling; the combined disability rating was 80 percent. 3. The evidence of record does not demonstrate that a service connected disability, to include the medications used to treat the service-connected disabilities, was either the principal or a contributory cause of the Veteran's 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. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist as to the matters being decided in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The appellant offered testimony before the undersigned Veterans Law Judge at a Board hearing in August 2016 and delivered sworn testimony via video conference hearing in at the RO. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured by obtaining the April 2017 VHA opinion. Applicable Laws To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, 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. Service-connected diseases or injuries involving active processes affecting vital organs 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). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (201); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including malignant tumors, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Analysis The appellant contends in her statements and Board hearing testimony that medications used to treat the Veteran's service-connected disabilities caused, aggravated, or hastened the death of the Veteran. Records such as a July 2010 VA patient medication information sheet indicated that the Veteran had numerous active medications for treatment of both service-connected and nonservice-connected disabilities. She also alleged that he had multiple falls due to his service-connected disabilities, which could have caused his subdural hematoma. The Veteran died in April 2011. The Death Certificate recorded the Veteran's primary cause of death as end stage renal disease, with subdural hematoma, bacteremia, and chronic obstructive pulmonary disease (COPD) listed as significant contributory causes of death. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling, a gunshot wound of the left arm with deep soft tissue involvement extending to the bone, rated as 20 percent disabling, a gunshot wound scar of the lateral surface of the right foot, rated as 10 percent disabling, and a gunshot wound scar of the left arm, rated as 10 percent disabling; the combined disability rating was 80 percent. The Veteran's service treatment records contain no findings related to renal disease, subdural hematoma, bacteremia, or COPD. In April 2017 a VA medical opinion was obtained. The April 2017 VA physician stated that it was "negligible" (far less than 50%) that any of the Veteran's prescribed medications caused or aggravated his renal disease or COPD. The examiner physician elaborated as follows: Medications that commonly are prescribed in the later stages of CKD appear on [the Veteran's medication lists] around 2008. But as of July 2010 he was still [taking] low-dose furosemide to manage his heart failure. Sensitivity to low-dose furosemide implies residual kidney function and disproves the assertion in the death certificate that he died from "years" of "ESRD." "ESRD" appears first as an admitting diagnosis on March 24, 2011, which is about 3 weeks before he died. This final hospitalization followed a series of admissions between November 2010 and February 2011 for relapsing sepsis. Those admissions were preceded by several others with pendulum swinging between heart failure on one extreme and dehydration with weakness and falling on the other extreme. There is no description provide of his physical capacity aside from that owing to cardiopulmonary disease although he was declared "incompetent" as of January 2009. There is no description provided of falling episodes(s). As for the question of whether the medications used to treat the Veteran's service-connected disabilities had caused the Veteran to fall and result in the subdural hematoma, the examiner essentially noted that the Veteran's medications of Codeine, Gabapentin, Citalopram, Mirtazapine, and Ropinirole deserved special consideration. The April 2017 VA physician stated that it was not likely that the Veteran fell due to the effects of Gabapentin, Citalopram, Mirtazapine, or Ropinirole, but whether Codeine played a role in his fall was "more" uncertain. The examiner went on to note, however, as follows: Based on the limited information provided, it appears that the chain of events culminating in renal failure and death started with bacteremia/endocarditis from an infected cardiac pacemaker around November 2010. No information is provided to link this infection to the prior fall. Since there is no reference to an infected wound from falling, the likelihood is less than 50% that the infection and subsequent demise are causally related to having fallen back in September. The examiner also stated that it was not likely that Codeine had been prescribed for his service-connected disabilities. The April 2017 VA physician concluded his opinion by stating that it was not likely that his "WWII injuries" (his left arm and right foot gunshot wound residuals) had contributed to the Veteran's fall and further noted that the Veteran was highly predisposed to fall independent of WWII injuries. Significantly, the examiner also essentially indicated that the Veteran's subdural hematoma, regardless of its origin or cause, was itself not likely related to the Veteran's infection and subsequent demise. The examiner cited multiple medical records in his review of the evidence and provided supporting rationale. Based on the foregoing, the Board finds that service connection for the cause of the Veteran's death is not warranted. The competent evidence of record does not demonstrate that a service connected disability, to include the medications used to treat the service-connected disabilities, was either the principal or a contributory cause of the Veteran's death. The Board finds the April 2017 VA opinion is of significant probative value as it contained a comprehensive review of the Veteran's medical records and also had a well-reasoned rationale for the opinions provided. The April 2017 VA physician supported the conclusions with specific references to the Veteran's medical records and pertinent medical literature. The Board notes that there is no contravening medical opinion of record. The appellant has provided credible lay statements regarding the Veteran's medical symptoms and medical history. Her assertions, however, that the Veteran's cause of death was related to his service-connected disabilities are not competent. In this particular case, such conclusions are not capable of lay observation and require expertise in complicated internal medical questions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("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"); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is knowledge acquired through the senses-that which the veteran heard, felt, saw, smelled, or tasted). Furthermore, even if the assertions were competent, they are outweighed by the April 2017 VHA physician's thorough and fully supported etiological opinions. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a more favorable determination. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs