Citation Nr: 1803733 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-08 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1961 to October 1963 and from May 1967 to November 1973. He died in December 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over this appeal is with the RO in Portland, Oregon. In December 2015, the Board remanded this appeal for additional development. After further development, this matter is now ready for adjudication. FINDINGS OF FACT 1. The Veteran died in December 2010 and the primary cause of death was pulseless electrical activity (cardiac arrest) due to hypoxic respiratory failure, acute respiratory distress syndrome, and pneumonia, with leukemia significantly contributing to the cause of death. 2. At the time of his death, the Veteran was service-connected for post-traumatic stress disorder, low back condition, type II diabetes mellitus, right and left lower peripheral vascular disease, tinnitus, transient ischemic attack, left and right lower peripheral neuropathy, bilateral hearing loss, malaria, residuals of hemorrhoidectomy, obesity, and erectile dysfunction. 3. The Veteran's cardiac arrest, hypoxic respiratory failure, acute respiratory distress syndrome, pneumonia, and leukemia were not shown in service or many years after service; and, the preponderance of the evidence fails to establish that these conditions are related to service, to include as secondary to a service-connected disability. CONCLUSION OF LAW The cause of the Veteran's death is not attributable to a disability incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Cause of Death In this case, the appellant asserts that the Veteran's cause of death was related to service, to include as secondary to his service-connected diabetes. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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 else be etiologically related. 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. § 1310 (2012); 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 is etiologically related to the cause of death. 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). 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. 38 C.F.R. § 3.312(c)(3). 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. Id. 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). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In this case, the Veteran died in December 2010, and according to his death certificate, the primary cause of death was pulseless electrical activity (cardiac arrest) due to hypoxic respiratory failure, acute respiratory distress syndrome, and pneumonia, with leukemia listed as a significant condition contributing to death. At the time of his death, he was service connected for post-traumatic stress disorder (70 percent), low back condition (40 percent), type II diabetes mellitus (20 percent), right and left lower peripheral vascular disease (20 percent for each), tinnitus (10 percent), transient ischemic attack (10 percent), left and right lower peripheral neuropathy (10 percent for each), and had noncompensable ratings for bilateral hearing loss, malaria, residuals of hemorrhoidectomy, obesity, and erectile dysfunction. As an initial matter, the appellant contents that the Veteran's service-connected diabetes contributed substantially or materially to his death. After a review of the evidence, the Board determines that the Veteran's service-connected disabilities, including diabetes, did not substantially or materially contribute to the Veteran's death. Specifically, the January 2014 VA examiner opined that the Veteran's died from sepsis which was unrelated to his diabetes. In support, the examiner noted that the Veteran's sepsis was related to his pancytopenia (which was caused by myelodysplasia) which is "very well known to cause very high risk of overwhelming, acute and life threating infection." Moreover, the examiner stated that such "sudden and rapidly overwhelming infections are not typical of diabetic infections but are typical of myelodysplasia/acute leukemia with pancytopenia." As a result, the Veteran's diabetes was unrelated to his sepsis and did not materially or substantially contribute to his death. Similarly, in January 2016, the VA examiner opined that the Veteran died from pneumonia/sepsis which "is a specific type of infection which is highly associated with the blood disorder (myelodysplasia vs leukemia) which this veteran was suffering from at the time of his death." Further, the examiner stated that pneumonia/sepsis is "not a specifically diabetic type of infection," and that "any small contribution from the general diabetes risk of infection would have been so small as to be merely speculative (i.e., highly theoretical and not discernible in this veteran's clinical setting)." As such, the examiner opined that the Veteran's diabetes to not cause and/or materially contribute to his cause of death. In rendering the decision on appeal, the Board acknowledges the medical literature provided by the appellant and opinions from the Veteran's treating medical provider which was received in October 2011. Specifically, that diabetes generally "predisposes people to infection such as pneumonia and increases the likelihood of antibiotic resistant infection." Nevertheless, the Board notes that these opinions are not supported by an adequate rationale as they fail to address the Veteran's condition and the relationship between his specific cause of death and his diabetes. Instead, it merely states without any support, that diabetes can generally predispose people to infections such as pneumonia. As a result, the Board is more persuaded by the opinions from the from the January 2014 and January 2016 VA examiners which specifically address the Veteran's condition and the relationship between his diabetes and death. In this case, the January 2014 examiner opined that the while "diabetes in general does somewhat increase the general risk for infection, "sepsis" syndrome (with probable pneumonia) is not considered a diabetic infection per se (as would be, for instance, a diabetic foot infection as a source of bacteremia/sepsis) and this veteran did not have an identified diabetic infection as a source of his sepsis." Similarly, as discussed, the January 2016 VA examiner stated that "pneumonia/sepsis syndrome is not a specifically "diabetic" type of infection. Further, the examiner opined that given the Veteran's extremely high risk of pneumonia (due to his myelodysplasia/leukemia), any small contribution from the "general" diabetes "risk of infection" would have been so small as to be merely speculative. Therefore, the Board finds the well-reasoned and sufficiently supported rationales from the VA examiners to be more probative. Additionally, the Board acknowledges the appellant's assertions that the Veteran's non-service connected disabilities such as ischemic heart disease and coronary artery disease for which the Veteran would be presumptively eligible for service connection, materially and substantially contributed to his cause of death. Nevertheless, the objective medical evidence, including the January 2014 and January 2016 VA examination reports, as well as the Death Certificate and December 2010 treatment records, reflect that the Veteran's death was not caused by heart disease and/or that heart disease materially contributed to his death. Further, the Veteran has failed to offer any medical evidence, including private medical opinions, indicating the Veteran's death was caused by heart disease and/or that heart disease materially contributed to his death. Next, the Board considers whether the Veteran's myelodysplasia/acute leukemia (which caused the Veteran's death), were related to service, to include as secondary to toxic herbicide exposure. Under the relevant laws and regulations, 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 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including leukemia, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, ischemic heart disease, Parkinson's disease, B-cell leukemias, and respiratory cancers (cancer of the lung, bronchus, larynx, and trachea). Service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). After a review of the evidence, the Board finds that service connection for myelodysplasia/leukemia is not warranted. As a preliminary matter, the Board finds that while the Veteran physically served in Vietnam and is presumed to have been exposed to toxic herbicides, service connection is not warranted on a presumptive basis because myelodysplasia and/or leukemia are not one of the disorders listed in 38 C.F.R. § 3.309(e). While B-cell leukemias are listed in 38 C.F.R. § 3.309(e), there is no evidence that he had any of the listed B-cell leukemias. As such, presumptive service connection is not warranted. Next, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to myelodysplasia/leukemia while in service. Significantly, the Veteran's separation physical examination in June 1973, fails to document any complaints of, or observed symptoms related to, myelodysplasia or leukemia. Moreover, the post-service evidence does not reflect symptoms related to myelodysplasia/leukemia for many years after the Veteran left active duty service. Specifically, the first indication of myelodysplasia or leukemia that was observed in the records was not until approximately 2010. Therefore, presumptive service connection under 38 C.F.R. §§ 3.309(a) is not for application. As part of this claim, the Board recognizes the statements from the appellant regarding the Veteran's history of myelodysplasia/leukemia symptoms since service. In this regard, while the appellant is not competent to make a diagnosis related to myelodysplasia or leukemia, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," she is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that service connection cannot be granted solely based on the appellant's reported history of continued symptomatology since active service. Specifically, the Board cannot ignore that there is a significant gap in time between when the Veteran left service and when she filed his claim for benefits. Moreover, the Board notes that the Veteran filed claims for VA benefits in 1973, 1984, and 1990, but did not seek entitlement to service connection for myelodysplasia or leukemia. The fact that the Veteran and later the appellant were aware of the VA benefits system and sought out claims for benefits, but made no reference myelodysplasia or leukemia, weighs heavily against her credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). As such, a continuity of symptoms is not shown based on the clinical evidence or statements from the appellant. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's clamed disorders to active duty, despite the appellant's contentions to the contrary. Here, there is insufficient competent medical evidence indicating that the Veteran's myelodysplasia or leukemia is related to active duty, including exposure to toxic herbicides. The Board notes that the January 2016 VA examiner opined that the Veteran's myelodysplasia/leukemia was not related to service. Specifically, she stated that "myelodysplasia/leukemia is currently understood to result from serial genetic mutations in the blood (marrow) cell lineages and none of veteran's service connected conditions cause such genetic mutations." Moreover, there was no evidence that the Veteran suffered an injury in-service or that the Veteran's myelodysplasia/leukemia was otherwise related to service. In considering this claim, the Board has also considered the statements made by the appellant and her son relating the Veteran's diabetes and heart conditions to his death, as well as relating his myelodysplasia/leukemia to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the appellant and her son are not competent to provide testimony regarding the etiology of the Veteran's myelodysplasia/leukemia or his cause of death. See Jandreau, 492 F.3d at 1377, n.4. Because myelodysplasia/leukemia and causes of death are not diagnosed or explained by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's myelodysplasia/leukemia and death are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for cause of death and there is no doubt to be otherwise resolved. As such, the appeal is denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, neither the appellant nor her representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the appellant that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. These letters also provided the appellant with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See, e.g., Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Therefore, adequate notice was provided to the appellant prior to the transfer and certification of the case to the Board and complied with the requirements of 38 U.S.C. § 510(a) and 38 C.F.R. § 3.159(b). With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran or appellant "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the appellant. Indeed, all VA treatment records and relevant private treatment records have been obtained. Further, to the extent that the appellant has identified potentially relevant private treatment records, these records were unable to be obtained. Nevertheless, the Board finds that VA has made reasonable efforts to obtain these records. Specifically, the appellant was notified by VA that it was unable to obtain these records due to incorrect information provided by the appellant and instructed her to provide correct information or to obtain these records on her own - neither of which occurred. Additionally, the Board has provided the appellant with a VA opinion pursuant to the Board's December 2015 Remand directives. Additionally, as discussed, this appeal was remanded by the Board in December 2015 in order to obtain an addendum VA opinion. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the appellant was provided with an addendum opinion in January 2016, which the Board finds adequate for rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs