Citation Nr: 1801704 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-29 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to December 1975. The Veteran died in July 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 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 Winston-Salem, North Carolina. In September 2017 the appellant appeared before the undersigned Veterans Law Judge and delivered sworn testimony via video conference hearing at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran died in July 2012; the Death Certificate recorded the Veteran's primary cause of death as congestive heart failure and pulmonary hypertension, with hypertension, diabetes, renal disease, and hemochromatosis and cirrhosis listed as significant conditions contributing to death but not resulting in the underlying cause of death. 2. A November 2014 Supplemental Report of Cause of Death included major depressive disorder as a contributory cause of the Veteran's death. 3. At the time of the Veteran's death, service connection was in effect for depressive disorder, a neck scar, residuals of a fractured dislocation of the cervical spine, headaches with vision problems, peripheral neuropathy of the upper extremities, and a right iliac crest scar. 4. The weight of the evidence of record makes it less likely than not 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 September 2017 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). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. A medical opinion of record was also obtained and neither the appellant nor her representative has objected to the adequacy of it. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. 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; 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 Veteran died in July 2012. The Death Certificate (completed by KD, RN) recorded the Veteran's primary cause of death as congestive heart failure and pulmonary hypertension, with hypertension, diabetes, renal disease, and hemochromatosis and cirrhosis listed as significant conditions contributing to death but not resulting in the underlying cause of death. A November 2014 Supplemental Report of Cause of Death (also completed by KD, RN) added, without explanation, major depressive disorder as a contributory cause of the Veteran's death. According to a December 2014 statement from the Veteran's representative, the addition of depressive disorder to the Veteran's Death Certificate was made after KD had reviewed the Veteran's medical records, but even so no rationale or explanation was made for the addition of depression as a contributory cause of death. At the time of the Veteran's death, service connection was in effect for depressive disorder, a neck scar, residuals of a fractured dislocation of the cervical spine, headaches with vision problems, peripheral neuropathy of the upper extremities, and a right iliac crest scar. The appellant contends in her statements and Board hearing testimony that the Veteran's service-connected major depressive disorder was a significant contributory cause of his death. She essentially stated her belief that the Veteran's depression and service-connected peripheral neuropathy and spine conditions caused him to neglect his heart condition and also prevented him from exercising and thereby contributed to an unhealthy weight gain. The Veteran's service treatment records contain no findings related to heart disease, pulmonary hypertension, diabetes, renal disease, or hemochromatosis and cirrhosis. In March 2015, a VA medical opinion was provided by a VA psychiatrist who reviewed the Veteran's medical records and opinted as follows: This examiner evaluated the veteran in July 2011. At that time he was found to have moderate to severe depression, mainly secondary to dealing with the pain and limitations from his service-connected medical problems. He had a remote history of alcohol abuse but had been abstinent for over 2 decades. The veteran did not commit suicide but died from natural causes including heart failure. There is no evidence that the depression directly caused or contributed to the death of this veteran. It could be speculated that the depression caused him to be less careful with his diet, exercise, medication compliance and other lifestyle issues but this would be merely speculation and therefore no opinion regarding the contribution of his depression to his death can be offered with any degree of medical certainty. As noted, for a service-connected disability to constitute a contributory cause of the Veteran's 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. As to the question of whether the Veteran's depressive disorder constituted a contributory cause of the Veteran's death, the evidence of record essentially contains a statement of etiology favorable (as contained in the Veteran's November 2014 amended Death Certificate) to the appellant's claim and a March 2015 VA opinion that rejects the appellant's claim. Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The professional credentials and experience of opinion providers are properly considered in assigning probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000). With these considerations in mind, the Board finds that the favorable statement contained in the Veteran's November 2014 amended Death Certificate has less probative value than the March 2015 VA psychiatrist's opinion. As a preliminary matter, the Board notes that there is no explanation of record as to why the Veteran's depressive disorder was not initially listed in July 2012 as a contributory cause of the Veteran's death. Further, even with the addition of the November 2014 amended Death Certificate, there is still no explanation as to how or why the Veteran's depressive disorder was actually causally related to his death. The March 2015 VA psychiatrist's opinion specifically stated that there was no evidence that the Veteran's depression directly caused or contributed to his death. Such an opinion was made not only after a review of the Veteran's medical records, but was also based in part upon Dr. D's personal knowledge of the Veteran's medical history, as noted in his March 2015 opinion and as demonstrated by a July 2011 VA Mental Disorders examination conducted by Dr. D. In addition to his review and knowledge of the Veteran's medical history, the Board finds that Dr. D's professional credentials and experience as a psychiatrist adds great probative value to his opinion and outweighs those of KD. Based on the foregoing, the Board finds that service connection for the cause of the Veteran's death is not warranted. 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 (meaning that she lacks the necessary medical training to establish the nexus in this case). 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). 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. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs