Citation Nr: 1808338 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-28 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1946 to January 1949 and from January 1949 to May 1958. He died in August 2009, and the appellant claims as his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, inter alia, denied service connection for the cause of the Veteran's death. Jurisdiction over this case was subsequently transferred to the RO in Oakland, California, and that office forwarded the appeal to the Board. In August 2016, the appellant testified during a video-conference hearing before the undersigned Veterans Law Judge (VLJ) from the RO in Oakland, California. A transcript of that hearing is of record. In November 2016, the Board remanded the claim on appeal to the Agency of Original Jurisdiction (AOJ) for further development. In its prior remand, the Board noted that the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1151 had been raised by the record in October 2009 and referred the issue to the AOJ. However, it does not appear that any action has been taken on this matter, and as such, the matter is again referred to the AOJ for appropriate action, to include informing the appellant that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (2017) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (2017) (continuing to provide for Board referral of unadjudicated claims). 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 August 2009, and the appellant is his surviving spouse. 2. The Veteran's service-connected lumbar spine, left knee, left ankle, and left hip/leg disabilities did not contribute substantially or materially to the Veteran's death. 3. Coronary heart disease did not manifest within a year of service or for many years thereafter, and was unrelated to service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The requirements of the statutes and regulations have been met in this case. First, VA notified the appellant in a February 2010 letter of the information and evidence needed to substantiate and complete her claim for DIC benefits under 38 U.S.C. § 1310, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. To the extent the letter did not comply with Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished), the appellant's contentions, addressed below, reflect that she had actual knowledge of what was needed to establish entitlement to service connection for the cause of the Veteran's death based on disability either service connected or service related but not service connected. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339-40 (2007). Moreover, a reasonable person could be expected to understand from the notice what was needed to establish service connection for the cause of the Veteran's death. Goodwin v. Peake, 22 Vet. App. 128, 133-34 (2008); see also Mlechick v. Mansfield, 503 F.3d 1340, 1344 (Fed. Cir. 2007) (section 5103(a) notice error not prejudicial when a reasonable person could be expected to understand what was needed). Additionally, VA assisted the appellant in obtaining identified and available evidence needed to substantiate her claim and affording her a VA medical opinion, which is of record. As indicated by the discussion below, this opinion, along with the other lay and medical evidence of record, is adequate to decide the claim. There is no evidence that additional relevant records have yet to be requested or that additional opinions are in order. Moreover, during the August 2016 Board hearing, the undersigned VLJ explained the issue on appeal, and asked questions to suggest the submission of evidence that may have been overlooked. These actions provided an opportunity for the appellant to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board will therefore proceed to the merits of the claim on appeal. II. Analysis DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). 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 be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310. 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the claimant is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cardiovascular disease is listed as a chronic disease in the statute and regulation, and the Board will therefore consider the provisions of 38 C.F.R. § 3.303(b) in this regard. In addition, for veterans such as the Veteran with 90 days or more of active service during a war period, chronic diseases including cardiovascular disease are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In this case, the Veteran died in August 2009, and his death certificate lists the immediate cause of death as uremia. The conditions leading to cause of death were indicated as acute renal failure, acute small bowel obstruction, and coronary heart disease, with coronary heart disease listed last, indicating it was the underlying cause of death, i.e., the disease that initiated the events resulting in death. At the time of his death, the Veteran was service-connected for left hip fracture and shortening of the left leg, left knee disability with traumatic arthritis, traumatic arthritis of the lumbar spine, and traumatic arthritis of the left ankle. He was also in receipt of a total disability evaluation based on individual unemployability due to service-connected disabilities and special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of his left foot. The appellant asserts that the Veteran's fatal coronary heart disease was caused by his inability to properly exercise, thereby causing weight gain and a sedentary lifestyle, which was ultimately a result of his service-connected lumbar spine, left knee, left ankle, and left hip/leg disabilities. In this regard, the appellant has indicated that that the Veteran had substantial difficulties in ambulation and mobility due to his service-connected disabilities. None of the private or VA treatment records of record, to include an August 2009 autopsy report, indicates a relationship between the Veteran's service-connected disabilities and his death. There is only one medical opinion that addresses whether there is such a relationship. In October 2017, the appellant was afforded a VA contracted medical opinion regarding the etiology of the Veteran's death. The providing physician, after reviewing the claims file, found it was less likely than not that the Veteran's service-connected disabilities (i.e., left hip fracture and shortening of the left leg, left knee disability with traumatic arthritis, traumatic arthritis of the lumbar spine, and traumatic arthritis of the left ankle) individually and/or collectively caused or contributed substantially or materially to the Veteran's death. The physician reasoned that "[a]lthough, the Veteran's service connected disabilities may have limited his ability to exercise, diet is an important factor contributing to the Veteran's illnesses which ultimately lead to his death." The physician further reasoned that the Veteran had a history of type II diabetes and uncontrolled hypertension, that the Veteran was placed on a strict diet but somehow managed to acquire salt for his food while in nursing homes, that the Veteran met the risk factors for coronary artery disease (such as age, gender, high blood pressure and diabetes), that these same risk factors and conditions increased the likelihood of acute renal failure, that uremia is a condition where urine is found in the blood due to the consequences of kidney failure, and that the Veteran's acute small bowel obstruction was caused by an aggressive tumor compressing and causing stenosis of the distal colon resulting in recurrent bowel obstruction (as noted in the autopsy report). As the physician who provided the October 2017 opinion explained the reasons for her conclusions based on an accurate and comprehensive review of the relevant evidence of record, including the appellant's lay statements, her opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Consequently, the weight of the medical evidence is against a finding that the Veteran's service-connected disabilities contributed substantially or materially to his death. The only other evidence indicating a relationship between the Veteran's service-connected disabilities and his death are the appellant's statements. The appellant generally indicated in her written statements and at the Board hearing that the Veteran's service-connected disabilities prevented him from ambulating and exercising properly, thereby causing weight gain and a sedentary lifestyle, which ultimately contributed substantially or materially to the coronary heart disease that was an underlying cause of his death. The appellant is competent to state her observations that the Veteran's service-connected disabilities caused difficulties in ambulation and exercise, and that the Veteran had gained weight and lived a sedentary lifestyle. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the question of whether and to what extent the Veteran's service-connected disabilities impacted his coronary heart disease that was an underlying cause of his death speaks to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. 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"). The appellant's statements and testimony on this complex medical matter are therefore not competent. To the extent that these statements and testimony are competent, the Board finds the specific, reasoned negative opinion of the physician who provided the October 2017 VA contracted medical opinion to be of greater probative weight than the appellant's more general lay assertions on this question. Additionally, to the extent that the appellant is asserting that the Veteran's weight gain caused his death, obesity does not constitute a disability under VA laws and regulations. See Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64 (Vet. App. Jan. 23, 2018) (holding that the United States Court of Appeals for Veterans Claims did not have jurisdiction to entertain the argument that obesity should be considered a disability under the rating schedule and affirming the Board's decision that service connection is not warranted for obesity as it is not in and of itself a disease or disability for VA purposes). In addition, to the extent that VAOPGCPREC 1-2017 recognizes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a), the above reflects that the weight of the competent evidence is against such a theory in this case. In light of the above, the only remaining question is whether the coronary heart disease that was the underlying cause of death was related to service. For the following reasons, the Board finds that it was not. The evidence of record reflects that coronary heart disease did not manifest during service, within the one year presumptive period, or from many years thereafter; and there is no argument or evidence that there was a direct relationship between coronary heart disease and service. In this regard, the Veteran's service examination reports, to include his March 1958 examination report, reflects that he was clinically evaluated as normal as to the heart. In addition, a July 1958 general medical examination report shows that there were no significant abnormalities as to the Veteran's cardiovascular system, and VA treatment records note the onset of the Veteran's coronary heart disease as January 2000. Moreover, the appellant has not alleged in her written statements or at the Board hearing that the Veteran had heart symptoms in service or within the one year presumptive period, that there was continuity of heart symptomatology since service, or that coronary heart disease was directly related to service. Furthermore, none of the private or VA treatment records indicates that the Veteran's coronary heart disease was directly related to service. Consequently, there is no basis on which to find that the Veteran's coronary heart disease was related to service. There was also no basis for requesting a VA medical opinion on this question, because, due to the lack of evidence of any relationship between coronary heart disease and service there was no reasonable possibility that such an opinion would have aided in substantiating the appellant's claim. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Finally, the Board notes that there are other conditions listed in the death certificate as leading to the cause of death, such as uremia, acute renal failure, and acute small bowel obstruction, and that another basis on which service connection for the cause of the Veteran's death could be granted would be that these conditions were directly related to service. However, the appellant has not raised this issue, nor has the issue been reasonably raised by the record, with respect to the instant claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit of the doubt doctrine is thus not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board appreciates the service of the Veteran and is sympathetic to the appellant's claim. However, notwithstanding the pro-claimant nature of the veterans benefits system, see 38 C.F.R. § 3.103(a) (2017) (VA must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government), the Board is bound by the laws and regulations that apply to veterans claims, and for the reasons above, those laws and regulations do not at this time allow for the grant of the benefit sought. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs