Citation Nr: 1801683 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-54 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1943 to January 1946. He died in June 2008 and the appellant in this matter is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the appellant offered testimony in support of her claim during a video conference hearing before the undersigned; a transcript of this hearing is of record. At the video conference hearing, the appellant was granted a 60-day abeyance period for the submission of additional evidence. 38 C.F.R. § 20.709 (2017). That period of time has lapsed and no additional evidence was received. Hence, the claim will be considered based on the current record. 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. The Veteran died in June 2008; his immediate cause of death was aspiration, due to (or as a consequence of) post-operative ileus, due to (or as a consequence of) total colectomy for massive lower gastrointestinal (GI) bleed, due to (or as a consequence of) diverticulum disease, the underlying cause. 2. The Veteran's only service-connected disability was posttraumatic stress disorder (PTSD) and his death was not caused or hastened by PTSD or any other disability incurred in or aggravated by service, or otherwise related to service. CONCLUSION OF LAW The criteria are not met for establishing service connection for cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.§§ 5103 , 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). VA's duty to notify was satisfied. See October 2012 VCAA Letter, November 2017 Hearing Transcript; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Neither the appellant nor her representative has alleged any deficiency in notice. In light of the foregoing, nothing more is required. Regarding the duty to assist, copies of the Veteran's post-service VA and non-VA treatment records were obtained and an opinion was obtained regarding his service-connected PTSD. No other nexus opinion is deemed necessary or required. See 38 C.F.R. § 3.159(c)(4). As explained in greater detail below, there is insufficient evidence to suggest that malaria or diverticular disease was a service-connected disability, or that malaria was a principal or contributory cause of death. The Veteran's service treatment records are unavailable. Where service treatment records have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). Appropriate steps were taken to obtain them, but they were unsuccessful. See VA Memo received November 2012. As there is no indication that the appellant was aware of the existence of any additional evidence for claim substantiation, the Board finds VA's duty to assist is satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria and Analysis Service connection for cause of death may be awarded for a veteran's death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. A principal cause of death is one which, singly or jointly with some other condition, was immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). A contributory cause of death is one which contributed substantially or materially to cause of death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). 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 of 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) (2017). Here, "the DIC claimant must establish service connection for the cause of the veteran's death." Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Thus, the same standards, theories, and criteria for service connection apply. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). In weighing the evidence, the Veteran is entitled to the benefit of the doubt. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). This does not mean that a claim must be granted because there is conflicting evidence. Rather, the benefit of the doubt applies where there is compelling reason to favor the negative evidence over the positive and the issue is simply "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The evidence shows that the immediate cause of the Veteran's death was aspiration. Post-operative ileus and total colectomy for massive lower GI bleed led to the immediate cause of death and diverticulum disease was underlying cause of death. See Death Certificate. At the time of his death, the Veteran's only sevice-connected disability was PTSD. Neither the appellant nor the evidence indicates that PTSD was related to his death. The RO nevertheless obtained an opinion to specifically address this theory and the VA psychologist who reviewed the record opined that it was less likely than not that the Veteran's PTSD materially or substantially contributed to his death, or caused debilitating effects and general impairment that would render him less capable of resisting the effects of the noted cause of death. She explained that while PTSD often occurs contemporaneously with physical conditions, existing research has not determined that PTSD causes poor health. Thus, there is no current known causal connection between the two and there is no literature to suggest a causal connection or increased risk between PTSD and gastrointestinal disorder. The VA psychologist added that there was no connection noted by medical providers in the record, no connection between mental health and cause of death in the death records, no mention of mental health concerns or associated medications impacting his medical care in medical and mental health records, and there was no current literature to suggest such a connection. See C&P Examination report received in September 2016. This medical opinion is highly probative and is supported by the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995). Thus, a preponderance of the evidence is against a finding that PTSD was either a principal or contributory cause of death. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appellant's contention instead focuses on a disability that was not service-connected at the time of the Veteran's death. She believes that the Veteran contracted malaria during service, which was never cured, and that his disease resulted in numerous high fevers that dried out an artery that caused the bleeding that resulted in his death. See pages 3 and 8 of Hearing Testimony. Although the Veteran's service treatment records are not available, statements of record from the Veteran were to the effect that he contracted malaria while serving in the Pacific Theater and that he had been taking quinine for treatment for malaria since 1945. See VA 21-4138 Statement in Support of Claim received in July 1998 and NA 13055 received in September 1998. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Thus, the Veteran's statements that he was diagnosed with malaria during service and was treated for it are the type of lay-observable evidence that he was competent to provide. When competent evidence has been presented, the Board must then determine whether it is credible. Here, there is evidence that the Veteran reported having a history of malaria well before he ever filed a claim for service connection. See page 39 of VA 10-7131 received in April 2016. Furthermore, other evidence was submitted that shows that there was a prevalence of malaria during wartime, including World War II. See Medical Treatment record - Government Facility received in November 2016. These two pieces of evidence lend credibility to the Veteran's statement, which is found to be probative. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Board finds there is credible evidence that the Veteran had malaria in service, the second two elements to establish service connection for the disability are not met. Significantly, there is no competent evidence of a diagnosis for malaria after service, which is a threshold factor for establishing service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Statements from the Veteran and the appellant indicate that the Veteran continued to be treated for malaria after service. The appellant asserts that once he was no longer able to take quinine to treat it, he had flare-ups of symptoms that caused high fevers. See NA 13055 and pages 4 and 5 of Hearing Transcript. These assertions are, however, not consistent with the medical evidence of record. Instead, treatment records show the Veteran had some fevers over the years from 1987 to 2005, but there were no documented readings above 101 degrees and there were no diagnoses of malaria. There was an occasion in November 1991 when the Veteran reported his fever had been 103 at times over the course of three or four days, but the clinical record at the time of treatment only showed a temperature reading of 99.6 degrees. See page 11 of VA 10-7131 form received in April 2016. The Veteran's treatment records note a history of malaria, but there are no records that showed a current diagnosis. Notably, even when the Veteran reported having a history of malaria, it was not diagnosed as a cause of his current symptoms. In January 1987 the Veteran reported taking over-the-counter quinine secondary to his history of malaria, but the diagnosis for his symptoms was bronchitis. In May 1987 he also reported taking quinine and having a history of malaria; the diagnosis was URI/sinusitis. See pages 20 and 35 of VA 10-7131 form received in April 2016. February 2001 treatment records show that the Veteran fevered subjectively and that it measured up to 101.5. He reporting having been sick for several days and that he had malaria. He had multiple complaints that included fever and his temperature was 99.4; his symptoms were treated as pneumonia. See pages 101 and 106 of Medical Treatment record - Government Facility received in October 2002. More recently the Veteran reported in May 2005 that he had a recent attack of malaria and went to the hospital. An April 2005 emergency room record shows he complained of having a fever; his temperature was 100 and the diagnosis was febrile illness. See page 7 of Medical Treatment Record - Non-Government Facility received in June 2005 and page 3 of Medical Treatment record - Non-Government Facility received in July 2005. It is apparent from these records that while the Veteran believed he was never cured of his malaria in service and that he continued to suffer bouts of malaria attacks, his post-service treatment providers did not share his opinion since none are shown to have made a diagnosis of malaria. The Veteran and appellant, as lay persons, are not competent to diagnosis his symptoms since malaria is not the type of illness that lends itself to a lay diagnosis. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995); Kahana v. Shinseki, 24 Vet. App. 428 (2011). It is particularly true in this case since fever is a common symptom that may be attributed to a variety of illnesses and has in fact been associated with several different diagnoses in the present case. In light of the above, the Board finds there is no competent evidence to show that the Veteran had a diagnosis of malaria after service. Moreover, there is no competent evidence that the malaria in service was related in any way to his death. No probative evidence has been submitted or obtained to show that the Veteran's malaria in service was either the principal or a contributory cause of his death. Instead, the evidence shows that his death was related to the Veteran's gastrointestinal disorder. Significantly, a June 2008 pre-operative notice states that the Veteran's bleeding was likely due to extensive diverticular disease. See page 2 of Medical Treatment record - Government Facility received in December 2015. The Board also considered whether the Veteran's gastrointestinal disorder was related to service, but there is no evidence that supports this theory. Treatment records from 1987 to 2000 contain no evidence of GI complaints, findings, or diagnosis. See VA 10-7131 form received in April 2016 and Medical Treatment record - Government Facility received in October 2002. There is no evidence of a gastrointestinal problem until years later and in February 2001 an abdominal CT scan revealed mild diverticula in the sigmoid colon. The assessment was possible diverticulitis. See pages 84 and 93 of Medical Treatment record - Government Facility received in October 2002. Treatment records in the days leading up to the Veteran's death show that he had multiple diverticula in the right colon and suspected right-sided diverticulosis. He was believed to have extensive diverticular disease. See CAPRI records received November 2012 and page 2 of Medical Treatment record - Government Facility received in December 2015. As previously noted, the Veteran's service treatment records are not available. Regardless, none of the available records indicate he ever had diverticular disease during service or shortly thereafter. The earliest evidence of diverticular disease was in 2001, which is 55 years after service and at the time of his diagnosis it was shown to be mild. There is no probative evidence that suggests a nexus between the Veteran's diverticular disease and service, and the fact that there were no complaints or findings of the disease for decades after service is another factor that weighs against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (The Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.). In light of the foregoing, the Veteran's diverticular disease that resulted in excessive bleeding is not shown to be related to his service. Unfortunately, for the reasons stated, the Board is unable to provide the appellant with a favorable outcome. The evidence weighs more heavily against a finding that a service-connected disability was a principal or contributory cause in the Veteran's death. Although the appellant has a strongly held belief that the Veteran's death was related to a service-connected disability, there is no probative evidence of record that supports her contention. As the preponderance of the evidence is against the claim for service connection, there is no reasonable doubt to resolve in her favor. Accordingly, the claim must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs