Citation Nr: 18129090 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-18 625 DATE: August 23, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for cirrhosis of the liver is granted. Entitlement to service connection for the cause of the Veteran's death is denied. REMANDED The claim of entitlement to an initial rating in excess of 40 percent for fibromyalgia is remanded. The claim of entitlement to a total disability rating based on individual unemployability is remanded. The claim of entitlement to special monthly compensation based on the need for regular aid and attendance is remanded. FINDINGS OF FACT 1. A chronic back disorder was not demonstrated in service, such a disorder is not shown to be related to service, and spinal arthritis was not compensably disabling within a year of the appellant’s separation from active duty. 2. Hypertension was not demonstrated inservice, such a disorder is not shown to be related to service, and hypertension was not compensably disabling within a year of the appellant’s separation from active duty. 3. Cirrhosis of the liver was related to the Veteran’s service-connected hepatitis C. 4. The Veteran’s death was not caused by a service-connected disability. CONCLUSIONS OF LAW 1. A chronic back disorder was not incurred or aggravated inservice, and lumbar arthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1118, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 2. Hypertension was not incurred or aggravated inservice, and hypertension may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1118, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304 3.307, 3.309, 3.317. 3. Cirrhosis of the liver is caused or aggravated by the Veteran’s service connected Hepatitis C. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 4. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to January 1994. At the time of his death in March 2013 he had claims of entitlement to service connection pending for a back disorder, hypertension, and cirrhosis of the liver. The appellant is his widow, and she has been recognized as a substitute claimant. These claims come before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (AOJs) in St. Paul, Minnesota, and Denver, Colorado. In February 2015, the appellant and her daughter participated in an informal conference with a Decision Review Officer at the AOJ in Denver, Colorado. Service Connection Back disorder 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, 1131; 38 C.F.R. § 3.303. Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran’s discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran’s discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection for arthritis may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran’s discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant seeks service connection for a back disorder on a direct basis, as related to the Veteran’s active service. In a telephone conversation with VA in March 2012, prior to his death, the Veteran indicated he believed his that his back disorder was due to an inservice injury. He alleged that while training, he fell backwards and felt pain, but did not have the pain “checked out.” The Veteran acknowledged a history of postservice surgery in March 2012 when three “broken discs” were fused in his spine. The evidence of record shows that the Veteran had a back disorder, variously diagnosed as lumbar fractures, stenosis, degenerative disc disease, lumbar radiculopathy, and T12 paraplegia during his lifetime. Significantly, the preponderance of the evidence is against finding that a back disorder began during active service or is otherwise related to an in-service injury, event, or disease. As such, the claim will be denied. 38 U.S.C. §§ 1110, 1131, 5107(b). The Veteran did not report or receive treatment for any back complaints in service. During a 1993 Medical Evaluation Board examination, prior to separation, he denied having had back problems, including any recurrent back pain. Clinical examination revealed a normal spine. During a June 1994 VA examination, following his discharge, he reported multiple medical complaints, but none affecting his back. According to treatment records in the file in approximately 2003, the Veteran began receiving treatment for generalized muscle and joint pain (fibromyalgia), which doctors eventually attributed to his hepatitis C. During treatment visits dated from 2006, he mentioned that the pain was affecting his back. From 2007 to 2010, his health deteriorated and his pain increased. In February 2010, the Veteran was involved in a serious car accident, resulting in a cervical spine fracture and exacerbating his worsening condition. In September 2010, he underwent an orthopedic musculoskeletal evaluation. He reported multiple medical problems, including pain at the base of his neck and across the lumbosacral area. The examiner noted neck and foot disabilities, but not a back disability. In 2011, the Veteran began seeking treatment for worsening back pain. In May 2011, he underwent a VA examination, during which x-rays revealed a chronic compression deformity with associated degenerative disk disease in the upper and mid spine. In July 2011, magnetic resonance imaging revealed multiple lumber spine abnormalities, including chronic post-traumatic residuals from L1-L3 and stenosis from L2-L4. In August 2011, a doctor attributed the stenosis to the Veteran’s motor vehicle accident. He administered an epidural injection. Three days later, the Veteran’s left foot “shut off on him.” Thereafter, he began falling frequently. In September 2011, the Veteran presented to the emergency room complaining of back pain. An MRI revealed additional lumbar spine abnormalities, including fractures from L2-L4, one old, one thought to have occurred sometime between July and September. In 2012, the Veteran sought treatment for progressively worsening lower extremity and back pain and lower extremity weakness. Doctors noted severe low back pain, severe epidural lipomatosis and severe thecal sac and nerve root compression, both at multiple levels, and significant lumbar radiculopathy. In February 2012, a private orthopedic surgeon diagnosed multi-level lumbar degenerative disc disease, attributed severe spinal stenosis to epidural lipomatosis, and attributed the lumbar fractures to osteoporosis. In March 2012, based on the recommendation of the surgeon, the Veteran underwent back surgery. In November 2012, he began complaining he could not feel his legs or ambulate, after which he was issued a wheelchair and moved to a skilled nursing facility. In December 2012, computer tomography imaging showed new fractures at T10 and L5 and doctors began referring to the Veteran as a paraplegic. Given the Veteran’s other serious medical conditions, particularly his thrombocytopenia and liver dysfunction, he was found to be too high of a risk for further back surgery. As noted, the Veteran died in March 2013. The foregoing evidence reveals that at no time during this appeal did a medical professional attribute the Veteran’s back disability to his service, to include due to any alleged in-service fall. Rather, the opinions uniformly point to post service events and diseases as the cause of the Veteran’s back disorders. The Veteran’s and the appellant’s lay assertions linking the Veteran’s back disabilities to service represent the only evidence linking a back disorder to service. Neither the Veteran nor the appellant, however, as lay persons untrained in the field of medicine, are competent to offer an opinion linking the Veteran’s various back disorders to service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the competent evidence of record indicates the Veteran’s back disability was related to post-service events, rather than to his active service, the criteria for entitlement to service connection for a back disability have not been met. Hypertension The appellant claims entitlement to service connection for hypertension on either a direct basis, as related to the Veteran’s active service, or secondary to his service-connected fibromyalgia and/or psychiatric disability. She claims that the Veteran was depressed from the time he returned home from Southwest Asia and that his depression worsened over time, particularly during the three months preceding his death. She relates the Veteran’s development of hypertension to depression. In support of this assertion she has submitted articles titled, “Psychosocial Factors and Risk of Hypertension” and “Insomnia and Sleep Duration as Mediators of the Relationship Between Depression and Hypertension Incidence”. Service connection may be granted on a secondary basis if the current disability is proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Hypertension will be presumed related to service if it became compensably disabling within a year of a veteran’s separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Hence, the questions for the Board are whether the Veteran had hypertension that began during service, whether hypertension was compensably disabling within a year of his separation from active duty, and whether hypertension was at least as likely as not due to, the result of, or aggravated beyond its natural progress by, a service-connected disability. The Board concludes that the preponderance of the evidence is against this claim, whether considered on a direct, secondary or presumptive basis. Service treatment records reflect that the Veteran was not diagnosed with this condition during service from May 1983 to January 1994. Blood pressure readings recorded during this time were consistently within normal limits for VA purposes. In June 1993, a routine electrocardiogram revealed a questionable inferior infarction. The Veteran was referred for consultation with a cardiologist. In July 1993 an echocardiogram was normal, showing unequivocal normal inferior wall motion. Hence, an examining cardiologist ruled out any cardiac abnormality. The same month, having been exhibiting chronic active hepatitis, the Veteran participated in Medical Evaluation Board proceedings, during which he reported a history of dizziness and shortness of breath on exertion. Examination yielded the clinical finding that the Veteran’s heart was normal. During a postservice June 1994 VA examination the appellant did not report any complaints pertaining to his heart. Examination showed his blood pressure to be 138/94. The examiner noted no history of hypertension, discussed the in-service cardiac abnormality (described as sinus arrhythmia with inferior infarction), ruled out on further testing, conducted an electrocardiogram, which was normal, and indicated there was insufficient evidence to diagnose cardiac disease. Treatment records dated since 2007, to include a June 2012 VA examination report confirm that the Veteran had hypertension prior to his death. Significantly, no treatment provider ever attributed this condition to the Veteran’s active service, or to a service-connected disability. In June 2012, following a VA examination and review of all critical medical documents of record, an examiner ruled out a relationship between the Veteran’s hypertension and any other pre-2007 event or disease. He acknowledged the cardiac abnormality initially shown in service, ruled out on further testing, and found that there was no history of any heart attack, stroke or chest pain. The examiner noted that the Veteran had recently undergone testing so that he could have back surgery and that the results were considered normal. This opinion is minimally probative because, at the time the VA examiner rendered it, he was privy to the results of a May 2012 electrocardiogram, but not the results of June and July 2012 electrocardiograms, both of which showed abnormalities. He discussed these test results later in his report, but did not indicate whether they changed his opinion. In March 2015, upon the AOJ’s request, another VA examiner reviewed this case, addressing the appellant’s assertions and the articles she submitted in support of this claim. This examiner cited to critical documents of record, acknowledged the articles the appellant submitted, and ruled out a relationship between the Veteran’s hypertension and service, and between hypertension and his service-connected fibromyalgia and psychiatric disability. The VA examiner based this unfavorable opinion on various cited literature and the following findings: (1) The Veteran had profound morbid obesity (calorie abuse, lifestyle decision); (2) Morbid obesity is a clinically well-known and literature-supported major risk factor for hypertension; (3) Morbid obesity is the number one cause of both hypertension and congestive heart failure in the adult US population; (4) VA does not presumptively service connect hypertension based on service in the Southwest Asia theater of operations; (5) VA’s decision in this regard is not arbitrary, but rather based on the recommendations of the Institute of Medicine; (6) The Institute of Medicine has found no such association; (7) One cannot attribute the hypertension to any service-related Southwest Asia exposure event; (8) The hypertension does not entail a pattern of chronic disability related to an undiagnosed or unexplained multi-symptom illness; (9) Although there exists articles associating mental health conditions with hypertension, there is no medical consensus that fibromyalgia or a mood disorder, to include depressive and anxious symptoms, can cause or aggravate hypertension; (10) There is a difference between association and causation; and (11) Unhealthy life-style decisions cause the hypertension. The articles the appellant submitted in support of this claim associate certain psychosocial and sleep behaviors with hypertension. Significantly, they are general in nature, not specifically addressing the facts in the Veteran’s case. Hence, they are of limited probative value. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but, “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). The appellant has not submitted a medical opinion refuting the findings of the March 2015 VA examiner, or otherwise discussing the etiology of the Veteran’s hypertension. Her assertions thus represent the only nexus evidence of record in this case. As previously indicated, these assertions may not be considered competent evidence of a nexus. Jandreau. The competent evidence of record preponderates against linking hypertension to service, or to a service connected disorder. As such, the criteria for entitlement to service connection for hypertension have not been met. Cirrhosis of the liver The appellant claims the Veteran developed cirrhosis of the liver secondary to his service-connected hepatitis C. The preponderance of the evidence supports this claim. Treatment records and test results dated since 2011 and a March 2015 opinion of a VA examiner show that, prior to his death, the Veteran had a diagnosis of cirrhosis of the liver. In July 2012, a VA examiner reviewed the Veteran’s records, acknowledged his service-connected hepatitis C, noted his assertion that a recent liver biopsy reflected that he had cirrhosis, but found that the objective medical evidence failed to substantiate this assertion. The examiner then concluded that it was less likely than not that cirrhosis is proximately due to or a result of the Veteran’s service-connected hepatitis C. This opinion is not probative as it is based on an incomplete review of the Veteran’s file and a faulty premise – that the Veteran was not diagnosed with cirrhosis. As noted above, treatment records include such a diagnosis and, from 2012, specifically refer to the Veteran’s liver condition as hepatitis C-induced cirrhosis and hepatitis C with cirrhosis, satisfying the nexus element of this claim for service connection. Cause of death The appellant claims entitlement to service connection for the cause of the Veteran’s death, however, she has not offered any supporting argument. Dependency and Indemnity Compensation may be paid to a veteran's surviving spouse in certain instances, including when a veteran’s death is caused by a service-connected disability. 38 U.S.C. § 1310. A veteran's death is considered to have been due to such a disability when the evidence establishes that the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. The principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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, one must consider 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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The Veteran died in March 2013, and his death certificate notes congestive heart failure as the immediate cause of his death, due to or as a consequence of obstructive sleep apnea, due to or as a consequence of hypertension. It also notes paraparesis, diabetes, morbid obesity and opiate use as other significant conditions contributing to his death. The Veteran was not service connected for any of these disabilities at the time of his death. He was service connected for a mood disorder, not otherwise specified, with anxious and depressive symptoms, and a cognitive disorder, rated 70 percent disabling; fibromyalgia, rated 40 percent disabling; hepatitis C with hiatal hernia and gastroesophageal reflux, rated 30 percent disabling; and for residuals of a fractured left little toe, and onychomycosis of the hands and feet, each rated as noncompensable. Since then, in the decision above, the Board has determined that the criteria for entitlement to service connection for cirrhosis of the liver have been met, but not the criteria for entitlement to service connection for hypertension. As previously noted, according to service treatment records, in June 1993, an electrocardiogram revealed a possible inferior infarction. A July 1993 echocardiogram was normal, however, showing unequivocal normal inferior wall motion. Based on this result, the cardiologist ruled out any cardiac abnormality. The same month, during Medical Evaluation Board proceedings, the Veteran reported a history of dizziness and shortness of breath on exertion, but the examiner noted a normal clinical evaluation of the Veteran’s heart. In June 1994, approximately five months after discharge, the Veteran underwent a VA examination, during which his blood pressure was 138/94. The examiner noted no history of hypertension, discussed the in-service cardiac abnormality, ruled out on further testing, and conducted an electrocardiogram, which was normal. The examiner indicated there was insufficient evidence to diagnose cardiac disease. Over a decade later, beginning in 2007, and after June and July 2012 electrocardiograms revealed abnormalities, including a possible inferior infarct, doctors began diagnosing the Veteran with heart disabilities. During the February 2015 informal conference at the AOJ, there was a discussion regarding whether cirrhosis of the liver – now service connected – played a role in the Veteran’s death. At the time, there were treatment records in the file showing the Veteran had then recently developed thrombocytopenia, thought to represent progressive decompensation of his hepatic cirrhosis. In December 2012, MM, M.D., noted that, unfortunately, the standard of care for this hematologic defect was supportive care, alone. The Veteran died three months later. Given these facts, the DRO requested a VA examiner to review the file, including the death certificate, which did not mention cirrhosis, and provide an opinion on whether the cirrhosis caused or contributed to the Veteran’s death. In March 2015, this individual complied. Based on her review, she wrote that it was more likely than not that the Veteran’s hepatitis C virus infection with cirrhosis had nothing to do with his congestive heart failure mortality. She explained that, although she had no idea what transpired between January 31, 2013, when a medical professional found the appellant to be normotensive without chest pain or shortness of breath, and March 19, 2013, the date of his death. Still, the examiner noted that the Veteran’s treatment records dated from 2011 to 2013 showed no overt or imminent liver failure. An April 2011 liver biopsy showed early (grade I or stage I) liver cirrhosis and an October 2012 esophagogastroduodenoscopy showed no cirrhosis-induced esophageal varices. Based on this evidence, the examiner concluded that it was unlikely the hepatitis C virus infection with cirrhosis in any way led or contributed to the Veteran’s due to congestive heart failure death. The appellant has not submitted a medical opinion refuting that of the VA examiner. Her assertions thus represent the only evidence of record linking the Veteran’s death to service or a service-connected disability. While the appellant believes the Veteran’s death to be related to service, she is not competent to provide a nexus opinion in this case. This issue is medically complex, involving a veteran with multiple serious medical conditions, thus requiring knowledge of the interaction between multiple organ systems in the body. Jandreau. As the competent evidence of record indicates the Veteran’s death is not related to his service or a service-connected disability, the criteria for entitlement to service connection for the cause of his death have not been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. The claim is denied. REASONS FOR REMAND Entitlement to an increased rating for fibromyalgia is remanded Entitlement to individual unemployability benefits based on service connected disorders is remanded Entitlement to special monthly compensation based on the need for regular aid and attendance is remanded. While developing this appeal, the AOJ obtained VA opinions addressing the severity of the Veteran’s service-connected disabilities and the effect such disabilities had on his ability to live independently. At the time, the Veteran’s service-connected disabilities did not include cirrhosis of the liver. Given the decision in this appeal to grant service connection for cirrhosis, an addendum opinion is now needed considering all service-connected disabilities. During his lifetime, the Veteran properly perfected appeals on the claims of entitlement to service connection for a back disorder, hypertension and cirrhosis of the liver and entitlement to special monthly compensation based on the need for regular aid and attendance, declining a hearing in each case. Since the Veteran’s death, the appellant perfected appeals on the claims of entitlement to an initial rating in excess of 40 percent for fibromyalgia, and entitlement to a total disability evaluation based on individual unemployability. In a VA Form 9 (Appeal to Board of Veterans’ Appeals) dated November 2017, which lists these two issues, she requested a video conference hearing before the Board, but it is unclear whether such request remains pending. In a VA Form 8 (Certification of Appeal) dated November 2017 (two days prior to receipt of the VA Form 9), a box is marked indicating she declined an optional Board hearing. Clarification is needed. These matters are REMANDED for the following action: 1. Refer this case to one of the VA examiners who reviewed it in November 2012 and March 2015. Ask this examiner for an addendum opinion addressing the effect of the Veteran’s service-connected disabilities, to include cirrhosis of the liver, on his ability to obtain and retain substantially gainful employment. The examiner should specifically opine whether, during his lifetime, the Veteran’s service-connected disabilities, considered alone and collectively, hindered him from obtaining and retaining employment and/or regularly necessitated the aid and attendance of a caregiver. In this regard, at the time of his death the Veteran is found to have been service connected for a mood disorder, not otherwise specified with anxious and depressive symptoms, as well as a cognitive disorder secondary to medication treatment; hepatitis C with cirrhosis of the liver; residuals of a fractured fifth toe; and for onychomycosis of the hands and feet. If neither examiner is available the Veteran’s VBMS and Virtual VA/Legacy files must be reviewed by a qualified physician. 2. Thereafter, if the claims remained denied, contact the appellant and ask her whether she still wants a videoconference hearing before the Board on the claims of entitlement to an initial rating in excess of 40 percent   for fibromyalgia, and entitlement to a total disability rating based on individual unemployability. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. N.