Citation Nr: 18156565 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 07-16 730 DATE: December 10, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in March 2006. The death certificate lists the immediate cause of death as bilateral pneumonia – mixed bacterial. Other significant conditions contributing to death but not resulting in the underlying cause were dilated cardiomyopathy, renal failure, dementia, and atherosclerotic cardiovascular disease. 2. The Veteran was not service-connected for the disorders listed on the death certificate and the record preponderates against finding a basis for establishing service connection for the cause of death. 3. The preponderance of the probative evidence is against finding that the Veteran’s service-connected malaria and lumbosacral spine degenerative joint and disc disease were either a principal or contributing cause to his death. CONCLUSION OF LAW A disability incurred in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1944 to January 1946. He died in March 2006. The appellant is his widow. In April 2009, the appellant testified before the undersigned Veterans Law Judge. In April 2011, the Board obtained an independent medical opinion from a specialist regarding the cause of the Veteran’s death. 38 C.F.R. § 20.901(d). In July 2011, the Board denied entitlement to service connection for the cause of the Veteran’s death. The appellant appealed this decision to the United States Court of Appeals for Veteran’s Claims (Court). In a November 2012 Memorandum Decision, the Court vacated the July 2011 decision and remanded the matter for readjudication. In June 2013, the Board again denied entitlement to service connection for the cause of the Veteran’s death. The appellant again appealed to the Court. By Order dated in June 2015, the Court granted the parties’ joint motion for remand. The parties agreed that the Board failed to address all theories of entitlement. Specifically, the theory that the physical effects of the service-connected back condition led to pneumonia, which was the cause of the Veteran’s death. Further, the parties agreed there was a pending notice of disagreement concerning accrued benefits. In September 2015, the Board remanded the appeal so that an opinion could be obtained from a board-certified pulmonologist. Most recently, in December 2017, the Board remanded the case so that a statement of the case could be furnished on the accrued benefits issues. This was accomplished in September 2018. A timely VA Form 9 was not received and those issues are not for consideration. In April 2018, the Veteran’s private attorney withdrew as counsel for the claimant. 38 C.F.R. § 14.631(f)(1). To date, the appellant has not appointed another representative. Entitlement to service connection for the cause of the Veteran’s death The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). 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). The Veteran’s death certificate lists the immediate cause of death as bilateral pneumonia – mixed bacterial. Other significant conditions contributing to death but not resulting in the underlying cause were listed as dilated cardiomyopathy, renal failure, dementia, and atherosclerotic cardiovascular disease. At the time of his death, the Veteran was service-connected for lumbosacral spine degenerative joint and disc disease (60 percent) and malaria (noncompensable). He was also in receipt of a total disability rating based on individual unemployability. Service treatment records reveal no complaints, findings or diagnoses of a cardiac or lung disorder. The separation examination revealed normal findings for the cardiovascular system and lungs. When examined in April 1949, the Veteran’s cardiovascular and respiratory systems were normal. In a January 2001 from Dr. D.S., it was stated that the Veteran had diabetes mellitus, chronic obstructive pulmonary disease, hypertension, degenerative arthritis, diverticulosis, dilated cardiomyopathy, atherosclerosis, and declining vision and hearing. Dr. D.S. stated that sometimes these problems exacerbated the Veteran’s service-connected back disability but at times his back disabilities interfered with his other problems. A March 2001 letter from Dr. R.W. stated that he was at that time giving the Veteran Celebrex for generalized arthritis and back pain. A September 2003 examination report from Dr. L.W. noted that the Veteran had hypertension, atherosclerotic heart disease and congestive heart failure. It was stated that the Veteran was treated with nonsteroidal anti-inflammatory drugs for his service-connected back disability. Dr. L.W. opined that the Veteran’s congestive heart failure could have been worsened, but not caused by, the use of nonsteroidal anti-inflammatory drugs. In September 2003, Dr. J.S. stated that he disagreed with Dr. L.W.’s findings as Dr. L.W. did not touch the Veteran in making his determination. In August 2004, the Veteran’s private physician completed an aid and attendance examination. There was atrophy of the lower extremities and it was noted the Veteran had a bed-to-chair ridden existence. In February 2005, Dr. J.S. opined that there was a temporal relationship between the Veteran’s use of Celebrex and Percocet and his elevated pressure, diastolic dysfunction and congestive heart failure. In a July 2005 statement, Dr. J.S. stated that the Veteran had suffered irreparable harm from Celebrex and Percocet. In February 2006, the Veteran was admitted to a private hospital with a primary diagnosis of pneumonitis due to inhalation of food or vomitus. He was discharged two days later but was again admitted a few days thereafter when he became unresponsive. He was transported to the emergency department and found to be hypotensive. The Veteran died in the hospital in early March 2006. The terminal discharge summary reflects a clinical impression of cardiogenic shock secondary to a myocardial infarction in a patient with chronic obstructive pulmonary disease, pneumoconiosis, a history of pacemaker placement, and senile dementia. An autopsy was performed in 2006 and the pathologist provided pathological diagnoses which included sepsis, organizing pneumonia, hypertensive cardiovascular disease and atherosclerotic cardiovascular disease. A June 2006 letter from Dr. J.S. noted that he was the sole medical physician for the Veteran up to the point of his death. Dr. J.S. stated that the Veteran’s increasing debility and weight loss to skeletal level did not allow him to maintain himself and that, as he was bedridden and had a reducing immunity, he developed several pneumonias on top of advanced black lung disease. The physician noted that the Veteran had previous idiosyncratic drug reactions to hydrocodone which contributed greatly to debility and then to his bedridden existence for years with dilated cardiomyopathy. The Veteran had taken Celebrex for years before Dr. J.S. treated him. Dr. J.S. opined that Celebrex caused excess sodium resorption on the renal level, hypertension, and dilated cardiomyopathy of the heart. In April 2009, the appellant testified that due to his service-connected arthritis, the Veteran became so debilitated towards the end of his life that she had to take care of all his needs. She offered her belief that the medications given to the Veteran from the time of his injury to the day of his death destroyed his health which contributed to his pneumonia. She stated that the Veteran had been on Percocet, Oxycodone and Celebrex for arthritic pain. She further asserted that despite the fact the death certificate listed pneumonia as his cause of death, his heart condition contributed to his death and that his arthritis medications led to the Veteran’s heart condition. In February 2011, the Board requested an independent medical opinion from a specialist regarding the cause of the Veteran’s death. The independent medical examiner, a board-certified cardiologist and a director of a cardiovascular program at a heart institute, submitted his findings in April 2011. In his report, the independent physician noted that he reviewed the Veteran’s eight volumes of records and he cited medical literature in support of his findings. He noted that records dated into the mid-1980’s demonstrated back pain, and that the Veteran was treated with multiple nonsteroidal anti-inflammatories, Celebrex and narcotics. The examiner noted that the Veteran suffered from multiple comorbid conditions to include diabetes, residuals of a cerebrovascular accident, hypertension, chronic obstructive pulmonary disease, black lung, and Alzheimer’s. The examiner noted that congestive heart failure was shown in the record as first appearing in 1999. The examiner noted that the Veteran was admitted to the hospital in February 2006 for a urinary tract infection with sepsis and pneumonia. He was treated for two days and discharged, but was brought back to the hospital after becoming unresponsive. The examiner stated that, upon admission, the Veteran’s troponins (an enzyme found in the heart and muscle cells) rose. The Veteran’s treating doctor, Dr. B.M., attributed the Veteran’s clinical scenario to a myocardial infarction causing cardiogenic shock. The consulting cardiologist, Dr. R., was of the opinion that the Veteran’s elevated troponin was caused by low blood pressure and low oxygen levels in the blood that resulted from sepsis. The independent medical examiner noted that this would result in poor oxygen delivery to the heart. The independent medical examiner noted that the autopsy confirmed sepsis and bilateral organizing pneumonia. The autopsy demonstrated only moderate atherosclerotic disease of the left anterior descending and circumflex arteries, and mild disease of the right coronary artery. The examiner found that the autopsy did not find evidence of any thrombus to suggest an acute myocardial infarction. While the left ventricle was thickened, consistent with hypertensive changes of the heart, the autopsy did not show signs of thinning or necrosis to suggest a previous or recent myocardial infarction. Having considered the above, the examiner concluded that the Veteran died from an overwhelming pneumonia and sepsis which was an expected outcome in a patient with an infection so severe considering his age and multiple non-cardiovascular conditions. The examiner specifically concluded that the Veteran’s cardiovascular disease did not likely cause or contribute significantly to his death. In December 2015, a VA internist, Dr. A.S., noted that the voluminous records were not tabbed and she was unable to find the referenced medical and autopsy reports. Presuming, however, that the independent medical opinion accurately reflected these records, it was less likely than not that the Veteran’s lumbosacral degenerative joint and disc disease contributed to his death, since sepsis and hypoxia resulting from urinary tract infection and organizing pneumonia are conditions unrelated to the service-connected back disability. In January 2016, Dr. A.S. reviewed the autopsy report and confirmed her November 2015 opinion and it was still less likely than not that the Veteran’s degenerative joint and disc disease contributed to his death. In July 2016, Dr. F.J. reviewed the autopsy report and concurred with the above assessment. In August 2016, Dr. F.J. clarified that he was a board-certified pulmonologist and medical intensivist. He again reviewed the autopsy report and noted the primary cause of death was organizing pneumonia and sepsis. Given the identified cause of death, it is less likely than not that the Veteran’s degenerative joint and disc disease contributed to his death. In considering the merits of the claim, the Board must address whether the Veteran’s service-connected disorders were a principal or contributory cause of death. The Veteran was not service-connected for any of the disorders listed on the death certificate and thus, the Board must consider whether service connection should have been established. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, including cardiovascular renal disease, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). On review, there is no evidence that pneumonia, cardiomyopathy, renal failure, dementia, or heart disease were present during service or at separation. There is also no evidence of cardiovascular-renal disease manifested to a compensable degree within one year following discharge from active service. Accordingly, there is no basis for establishing service connection on a direct or presumptive basis. The Board acknowledges the arguments concerning secondary service connection. The preponderance of the medical evidence is against finding that the Veteran’s service-connected disorders proximately caused his terminal pneumonia or aggravated it beyond its natural progression. As concerns the heart disorder, and as discussed below, the Board finds that it did not contribute substantially or materially to the Veteran’s cause of death and thus it is not necessary to address whether secondary service connection is warranted. Regarding whether the Veteran’s service-connected disorders contributed to death, the appellant does not assert that service-connected malaria was in any way related to his death and the record does not contain any evidence suggesting a link between the Veteran’s in-service malaria and his death. Rather, the appellant’s arguments appear to be two-fold. First, that the medication the Veteran took for his service-connected back disorder caused a heart disorder which was a contributory cause of death. Second, that the physical effects of his service-connected back condition to include a loss of mobility and increasing debility caused or contributed to the development of pneumonia, which was the immediate cause of death. Turning to the first argument, the initial question must be whether any heart disorder was a contributory cause of death. In making this determination, the Board notes that the record contains various private opinions addressing a potential link between medication use and the Veteran’s heart disorders. They do not, however, discuss whether his heart disorder contributed substantially or materially to his death. The opinion of Dr. J.S., which gets closest to offering a probative opinion on this question, merely states that the Veteran’s medications for his service-connected back disorder made him weaker and more susceptible to disease. At best, this opinion shows that the Veteran’s degenerative joint and disc disease casually shared in producing death which is insufficient to establish a contributory cause of death. 38 C.F.R. § 3.312(c). The Court’s November 2012 memorandum decision found that the Board failed to address relevant evidence when discussing the above question. Specifically, the March 2006 discharge summary that noted cardiogenic shock secondary to a myocardial infarction; the death certificate listing heart conditions as another significant condition contributing to death but not resulting in the underlying cause; and the autopsy report listing hypertensive and atherosclerotic cardiovascular disease as pathological diagnoses. The Board acknowledges the above records but on review, they are not as probative as the April 2011 independent medical opinion. The independent medical examiner, a board-certified cardiologist, gave a detailed report of the evidence reviewed including the Veteran’s service treatment records and claims file and succinctly opined that the Veteran’s death was not likely caused or contributed to by heart disease. The independent medical examiner addressed the pertinent evidence, cited medical references supporting his conclusion, and discussed the medical reports created at the time of the Veteran’s death at length. In this regard, the Board notes that the autopsy findings do not support the Veteran had a recent heart attack. As discussed, the consulting cardiologist found the elevated troponin level was related to sepsis. The more probative evidence is simply against finding that a heart disorder contributed materially or substantially to the Veteran’s death. In support of the second argument, a prior representative cited multiple records indicating the Veteran’s spine was essentially frozen, and that he was bedridden and unable to sit in a wheelchair. See August 2015 Appellant’s Reply to 90-day letter. Additionally, the June 2006 letter from Dr. J.S. indicates the Veteran’s increasing debility and weight loss to skeletal level did not allow him to maintain himself and that for postural reasons while bedridden and because of reducing immunity, he developed severe pneumonias. At the April 2009 hearing, the appellant testified that she had to keep moving and turning the Veteran per his physician’s instructions to prevent him from getting pneumonia. The Board acknowledges the above, but on review, finds the August 2016 VA opinion more probative. The opinion was rendered by a board-certified pulmonologist who reviewed the record and found that considering the cause of death, it was less likely that his service-connected back disorder contributed. In this regard, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Additionally, 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). The medical evidence shows the Veteran died of an “overwhelming” pneumonia and sepsis. The Veteran’s service-connected lumbar spine disorder is skeletal in nature and the more probative evidence does not show that it materially affected a vital organ or that it contributed to his death. In making the above determinations, the Board acknowledges the appellant’s sincere belief that the Veteran’s death is related to service. As a lay person, however, she is not competent to provide an opinion on a complex medical question. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Also in August 2018, the appellant’s then attorney argued that should the Board find there were other causes of debility and loss of immunity, then the Board should ask a medical expert to address the causal relationship between the Veteran’s debility and his long history of taking nonsteroidal antiinflammatory medications and his history of hemorrhage and/or aggravation of heart disability. In this case, the Board has already obtained medical opinions from a board-certified cardiologist and a board-certified pulmonologist. In the absence of any specific medical evidence suggesting the above, the Board does not find it necessary to obtain any additional opinions. 38 C.F.R. § 3.159(c). In summary, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel