Citation Nr: 1808478 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-05 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran had active military service from October 1958 to October 1960. He died on September [REDACTED], 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appellant appeared and testified at a videoconference hearing held before the undersigned Acting Veterans Law Judge (VLJ) in July 2010. A copy of the transcript of this hearing has been associated with the claims file. Most recently, the Board remanded this matter for additional development in January 2016. The matter is again before the Board. FINDINGS OF FACT 1. The Veteran died on September [REDACTED], 2007; the immediate cause of death was noted as myocardial infarction on the certificate of death. 2. At the time of the Veteran's death, service connection was in effect for varicose veins of the left and right leg, each rated at 40 percent disabling. 3. A service-connected disability did not play a material role in the Veteran's death, render him less able to withstand the effects of his fatal underlying disease, or hasten his death. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially in causing the Veteran's death. 38 U.S.C. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. 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). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disease initially diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for the cause of a Veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the Veteran's 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 of death, or 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; 38 C.F.R. § 3.312. The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that 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), (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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2017). In the instant case, the appellant contends that the Veteran's death was caused by his service-connected varicose veins. The Veteran's death certificate indicates that the cause of death was myocardial infarction; no other causes are listed. As noted, at the time of the Veteran's death, service connection was in effect for the right and left leg for varicose veins, each rated at 40 percent disabling. In October 2007, the appellant submitted a claim of entitlement to service connection for the cause of the Veteran's death and for dependency and indemnity compensation benefits. In her March 2008 Notice of Disagreement, the appellant contended that the Veteran suffered from hypertension due to the pain of his varicose vein disabilities. In July 2008, G.S.M., DO submitted an opinion that it was "reasonable to conclude that the vascular problems that [the Veteran] suffered from early in his life contributed to the vascular event at the end of his life," and noted that the Veteran had normal blood pressure in service; however his leg pain from his varicose veins persisted throughout his life and that eventually the Veteran was placed on medicine for blood pressure and circulation problems. He also noted that the Veteran had a small myocardial infarction the mid-1990s. In August 2008, B.F., M.D. who was the Veteran's primary care physician, submitted an opinion that the Veteran's death "was associated with his underlying vascular disease." In October 2008, the appellant submitted a summary of a medical article which noted that new arterial disease occurred significantly more in individuals with varicose veins; however it also notes varicose veins likely do not cause arterial disease but they may have common cause. It also stated that varicose veins were not related to hypertension. In September 2009, the appellant testified at a hearing that she believed that the Veteran's varicose veins led to him developing hypertension and that resulted in a subsequent heart attack. In June 2010, G.S.M., DO submitted an opinion that although an autopsy was not done and literature did not support it, that they felt that it was possible that the Veteran's vascular problems that he suffered from early in life may have contributed to the vascular event at the end of his life. In July 2010, the appellant testified at a Board hearing before the undersigned. She stated that she believed that the stress of the Veteran's varicose veins disability led to him developing hypertension and that resulted in a subsequent heart attack. She also noted he was able to walk less after his varicose vein surgery. In February 2011, a VA examiner opined that the Veteran's hypertension was not caused by or aggravated by varicose veins, as primary hypertension, which is 95 percent of hypertension cases, does not have a secondary cause. The examiner noted that secondary causes included renovascular disease, aldosteronism, and pheochromocytoma, but not varicose veins. The examiner also stated that other causes that had been identified included obesity, sedentary lifestyle, and excessive intake of alcohol or salt. In June 2011, G.S.M., DO submitted another opinion. It stated that although an autopsy was not done, they felt that it was as likely as not that his vascular problems he suffered from early in life may have contributed to the vascular event at the end of his life. In December 2014, another VA opinion was provided. The examiner opined that the Veteran's myocardial infarction (MI) was not caused by or the result of varicose veins and varicose veins are not a commonly accepted risk factor for coronary artery disease (CAD) and that the Veteran was known to have other risk factors including age, gender, hypertension, family history, and obesity. In a January 2015 VA Form 646, the appellant's representative noted that given the result of the 2014 examination, an opinion should be sought on whether the Veteran's varicose veins would have as likely as not limited his activities and his ability to exercise, causing myocarcial infarction risk factor. The appellant also submitted a WebMD article on deep vein thrombosis. In April 2016, a VA clinician opined that the Veteran's varicose veins less likely than not resulted in the Veteran's fatal MI and that varicose veins are not a known risk factor for MI. She noted there was no clinical evidence that the Veteran's varicose veins limited his activity and that lack of exercise would have contributed to his MI. She indicated that there was also no evidence of any DVT related to his varicosities that could have resulted in a mycoardial event. The clinician noted that there was no relationship between varicosities and heart disease, and that the presence of bad veins did not increase the risk of heart problems, as the venous system was distinct from the arterial system, and when a patient experienced coronary artery disease there was damage to small arteries supplying the heart muscle with blood. The clinician also noted that review of the service treatment records showed no history or risk factors for CAD or MI in service, so that it was less likely than not that the Veteran's death was otherwise linked to his military service. In August 2016, the appellant submitted a New Medical Article titled "varicose veins may signal potential dangerous blood clots" and highlighted a portion that noting many people with varicose veins experience pain, swelling, heaviness and fatigue, and in some cases leg veins may becoming inflamed and painful, a condition known as superficial phlebitis. It also stated sometime phlebitis can be associated with superficial vein thrombosis and that 1 in 4 people superficial vein thrombosis also had deep vein thrombosis (DVT). On July 2017, a cardiologist provided an opinion at the behest of the Board. The clinician addressed multiple questions after reviewing the file. First, the clinician was asked whether the Veteran's varicose veins caused or contributed to his fatal MI. The clinician opined that generally varicose veins can be associated with local inflammation and infection that on occasion were associated with thrombosis of the deep veins (DVT). The clinician noted that DVT was found in more advanced venous disease and was a cause of acute pulmonary embolism; which in turn could cause sudden cardiac death; however, he noted that this would not be classified as an acute myocardial infarction. He opined that there was no direct causal relationship between superficial varicose veins and MI, and that in the case of the Veteran there was no direct causal effect ascribed to DVT and acute thrombosis MI. Next, the clinician was asked whether the Veteran had DVT associated with his varicose veins. The clinician stated he saw no objective evidence on the veteran's exams or imaging to support the presence of DVT, thus he had no DVT associated with his MI. Finally, the clinician was asked if the severity of the varicose veins limited the Veteran's activities or his ability to exercise and in this way contributed additionally to factors which hastened the Veteran's death. The clinician noted that the Veteran was employed for many years after discharge from service, including at a bus company, although it was not possible to say what his daily exercise was. The clinician also noted exercise treadmill evaluations showed he had a good functional capacity exceeding 7 METS (metabolic equivalent), which did not support a limitation of functioning, and none of the stress imaging revealed myocardial ischemia. The clinician also noted several of the Veteran's medications caused a fatigue sensation versus actual limitation of function. The clinician opined that the documentation did not provide an indication why the Veteran would have been seriously limited in activity or exercise, even though he acknowledged this was "at odds" with the appellant's personal assessment of the Veteran's functional capacity. The clinician also was asked to discuss the various private opinions and reference articles submitted. He noted that, in regards to the publications, the Web MD article was about DVT and therefore not applicable to the Veteran, and that the News Medical article was from a commercial vendor and did not reference MI. He indicated that he found no supporting literature on Pub Med to support appellant's contentions. He also noted that the private opinions were too vague, including the reference to "vascular disease" and did not offer a supporting rationale. Overall, the clinician stated the weight of the objective evidence did not support a likelihood that varicose veins were responsible directly or indirectly for the Veteran's unexpected death. Upon careful review of the record, the Board has concluded that service connection for the cause of the Veteran's death is not warranted. As noted above, at the time of his death, the Veteran was in receipt of service connection for varicose veins; however, there is no competent evidence that any such disability was the immediate or underlying cause of death, or that any such disability was etiologically related to the Veteran's death, as they did not cause his hypertension or myocardial infarction. VA may favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). When weighing private opinions against the VA opinions including the detailed 2017 VHA cardiologist opinion, the Board finds the VA examination reports taken together to be more probative, because while both private clinicians noted they had served as treating clinicians for the Veteran, the VA examiners' opinions including the VHA better reflected the Veteran's overall medical history, review of the file, and review of the pertinent medical literature, including the articles that the appellant submitted. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board finds it very probative that while the private opinions linked the Veteran's varicose veins to his myocardial infarction, they did not provide an adequate rationale for doing so, and the one opinion even conceded that there was no supporting medical literature to link his varicose veins to his fatal heart condition. The VA examiners in contrast, together, reviewed the Veteran's records, including review of his private records, and noted that the Veteran did not have DVT, and his varicose veins were less likely than not the cause of his hypertension or myocardial infarction, as there is no causal nexus between varicose veins and hypertension, and the venal and arterial system are different. Furthermore, the VHA noted that the Veteran did not have a vein condition severe enough to cause acute pulmonary embolism which in turn can cause sudden cardiac death, which regardless, is a different condition that the acute myocardial infarction listed on his death certificate. The opinions, especially the VHA, also noted that his varicose veins were not the underlying cause of any lack of exercise/activity that may have hastened the Veteran's death, as he was still able to work at least part-time, did well on functional tests such as his treadmill evaluations, and used fatigue causing medications. The VHA opinion addressed the submitted articles and found them not to be applicable to the Veteran's specific situation, especially since he did not have DVT. Nor was there any direct link between service and the myocardial infarction in 2007 per the April 2016 VA examination, which noted the Veteran showed no history of or risk factors for CAD or an MI while in service. In reaching its conclusion, the Board notes that it has considered the appellant's assertions and acknowledges that she is competent to report her own observations with respect to the Veteran's symptoms, as well as his activity level and references to pain in his legs. However, it must also be considered that she does not possess any medical expertise with regard to determining whether there is an etiological relationship between the Veteran's fatal myocardial infarction and service, or any service-connected disability. See Jandreau (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Furthermore, none of the articles submitted were found to be applicable in the instance of the Veteran and did not provide a causal link between varicose veins and myocardial infarctions, but only acknowledged they could have the same underlying causes. In summary, the evidence fails to establish that the Veteran's service-connected disabilities either caused or materially contributed to his death. Accordingly, the claim of entitlement to service connection for the cause of the Veteran's death must be denied. CONTINUED ON NEXT PAGE ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs