Citation Nr: 0004889 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 95-18 604 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from November 1942 to October 1945. He died on December [redacted], 1994. During his lifetime, service connection was in effect for anxiety reaction, which was assigned a 50 percent disability evaluation effective December 1, 1983. The appellant is the spouse of the veteran. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision which denied entitlement to service connection for the cause of the veteran's death. In April 1997, the Board remanded the case for additional development. The RO completed such development, and the case is again before the Board for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Before his death, the veteran requested to reopen his claim for an increased rating in July 1994. When the veteran died in December 1994, that claim was still pending. 38 U.S.C.A. § 5121. In an April 1995 rating decision, the RO denied an increased rating for anxiety reaction; entitlement to special monthly compensation; service connection for the cause of the veteran's death; and basic eligibility under 38 U.S.C., Chapter 35. The appellant's notice of disagreement pertained only to the issue of service connection for the cause of the veteran's death. Therefore, the issue that has been developed for appeal is only that as listed on the title page of this decision. 38 U.S.C.A. § 7105. FINDINGS OF FACT 1. All of the available, relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The immediate cause of the veteran's death in December 1994 was possible myocardial infarction. 3. At the time of his death, the veteran's service-connected disability was anxiety reaction, which was assigned a 50 percent disability evaluation effective December 1, 1983. 4. The cause of the veteran's death was not shown to be present or coincident with service, was not the result of injury suffered or disease contracted during service, and was not etiologically related to the service-connected disability. 5. The service-connected anxiety reaction did not cause, or contribute substantially or materially, to the cause of the veteran's death. CONCLUSIONS OF LAW 1. Possible myocardial infarction was not incurred in or aggravated by service; may not be presumed to have been incurred therein; and was not proximately due to or the result of the service-connected anxiety reaction. 38 U.S.C.A. §§ 1110, 1101, 1112, 1113, 5107 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1999). 2. A disability incurred in or aggravated by service did not cause or contribute to the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.310, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the appellant's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). The appellant has presented a claim which is not inherently implausible and the Board is satisfied that all relevant facts have been properly developed. At the time of the Board's April 1997 remand, the RO was requested to attempt to obtain the records of the veteran's terminal hospitalization period. A report of contact shows that the RO attempted to telephone the appellant in February 1998 and March 1998 in order to obtain her current address. It was noted that information relevant to this appeal had been returned as undeliverable by the Post Office at an earlier time. The duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If an appellant wishes help, she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. Id. In light of the RO's various attempts to undertake the requested development, the Board finds that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background The veteran's entry examination in November 1942 revealed no pertinent abnormalities. Service medical records show that the veteran was hospitalized in July 1945 for a moderately severe anxiety state, manifested by psychosomatic complaints of chest pains, precordial pains, pains in the arms and legs, fatigue, loss of appetite, restlessness, and inability to sleep. The veteran was examined for the possibility of an organic heart disorder. The impression following cardiovascular examination was neurasthenia. A cardiac clearance was given. Right axis deviation was shown on an electrocardiogram (EKG). At the time of the veteran's initial claim for compensation benefits in October 1945, the veteran indicated that he was seeking benefits for a nervous condition that caused pains in the chest, dizziness, and aching legs and arms. He reported that such condition began in February 1941, previous to entrance into service and was aggravated in May 1944. A rating decision dated in November 1945 granted service connection for psychoneurosis, anxiety, at a rate of 30 percent. The veteran was hospitalized at a private facility in July 1979 for the acute onset of severe retrosternal pain. An acute inferior infarct was diagnosed on EKG and by enzymes. He had a 3-month history of angina that occurred about 2 times per week. He also had a history of hypertension in the past, poorly controlled. The discharge diagnoses were hypertension; arteriosclerotic cardiovascular disease (ASCVD) with angina pectoris; acute inferior wall myocardial infarction (MI); exogenous obesity; and hypertriglyceridemia. Subsequent records continue to show treatment for ASCVD. An April 1987 rating decision effectuated that Board's March 1987 decision that granted a 50 percent evaluation for anxiety reaction. The April 1987 rating decision effectuated the 50 percent grant from December 1, 1983. The veteran was hospitalized at a VA facility in March 1993 because of bilateral carotid artery stenosis. On arteriogram, his left carotid was completely occluded; his right coronary artery had 60 percent stenosis. It was noted that he had a stroke in 1986, MI in 1979, and some depression. Over the course of hospitalization, it became clear that the veteran was not interested in undergoing an extremely large operation as an aorta bifemoral bypass. The veteran was afforded an examination in July 1994 for aid and attendance and housebound purposes. At that time, the veteran did not have the mental ability to manage his own affairs. The diagnoses were CVA (cerebrovascular accident); gastrointestinal bleed; peptic ulcer disease; and anxiety/depression. The veteran's prognosis was poor. The veteran was hospitalized at a VA facility in August to September 1994. The diagnoses were CVA with right hemiparesis; severe peripheral vascular disease, patient refused surgery; left carotid bruit; upper gastrointestinal bleeding, by history; atherosclerotic heart disease; chronic brain syndrome; and malnutrition. The veteran's wife was unable to care for the veteran at home, and he was to be admitted to a nursing home. According to the death certificate, the immediate cause of the veteran's death in December 1994 was possible myocardial infarction. An autopsy was not performed. A May 1995 statement from a private physician indicates that he had treated the veteran at a nursing home. He noted that there was a medical complication of extreme anxiety/depression which was a contributing factor to his death. A December 1998 statement from a VA physician indicates that he reviewed the veteran's case. The doctor stated that he had reviewed all documents submitted to him by the RO, including all VA medical records and prior opinions by another medical specialist. It was observed that the only information in the veteran's assembled records from his personal physician was a brief note stating that there was a relationship between anxiety and the veteran's subsequent sudden death. There were no medical records from the physician's office or non-VA hospitalizations that would support that statement. After reviewing the documentation, the VA doctor found that there was no evidence that the anxiety reaction caused death or contributed substantially or materially to the cause of death or rendered the veteran less able to resist the effects of other diseases. Further, the VA doctor found that there was no evidence that the anxiety reaction which was shown to be a significant problem for the veteran by review of the medical record had a material influence on accelerating the death. He added that there was no evidence that the veteran's service-connected illness influenced his death. The doctor further stated that while detailed records from the veteran's personal physician were not available, it was his opinion that it was unlikely that those records would alter his conclusions. The doctor pointed out that his statements herein were based on review of the medical literature which demonstrated no direct relationship between anxiety and death from cardiac diseases. Analysis The surviving spouse of a veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 1991). In order to establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. 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. Id. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. Id. A contributory cause of death is inherently one not related to the principal cause. Id. 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. Id. 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. Id. Generally, 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. Id. 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. 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. Id. 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. Id. The medical evidence of record does not establish that the veteran's service-connected anxiety reaction, singly or jointly with some other condition, was the immediate or underlying cause of the veteran's death; was etiologically related to the immediate cause of death; or contributed substantially or materially to cause the veteran's death. The evidence of record shows that the veteran's immediate cause of death was possible myocardial infarction. There is no evidence of record showing that the service-connected anxiety reaction was medically related to or caused the veteran's possible myocardial infarction. The medical evidence shows that the service-connected anxiety reaction did not accelerate the veteran's death. In this case, the appellant contends that the veteran's anxiety contributed to his deteriorating health and heart condition and eventually caused his death. She pointed out the he was anxious at all times and he could never relax. Initially, the Board notes that although the appellant is competent to testify as to her observations of the veteran's experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the appellant currently possesses a recognized degree of medical knowledge that would render her opinions on medical diagnoses or causation competent. Since the critical issue in this case is whether the veteran's service-connected disability contributed as required by regulation, to his death, medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To support her claim, the appellant provided a May 1995 letter from a private doctor in which he provides an opinion that anxiety/depression was a contributing factor to the veteran's death. Also of record is a December 1998 medical opinion from a VA doctor that indicates that the veteran's service-connected anxiety did not contribute substantially or materially to the cause of death. The United States Court of Appeals for Veterans Claims (Court) has held that it is the Board's duty to determine the credibility and weight of evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board may not ignore the opinion of a physician, it is certainly free to discount the credibility of that physician's statement. Sanden v. Derwinski, 2 Vet. App. 97 (1992). Greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence, Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994), and an opinion may be discounted if it materially relies on a layperson's unsupported history as the premise for the opinion. Wood v. Derwinski, 1 Vet. App. 190, 191-192 (1991). The Board finds the December 1998 VA medical opinion to be highly probative. See Owens v. Brown, 7 Vet. App. 429 (1995). The medical opinion was rendered by a professional who was able to conduct a longitudinal review of the veteran's lengthy medical records. The VA doctor gave the reasons for the conclusions, such as the absence of evidence. Thus, the Board finds the December 1998 VA medical opinion to have great probative value. See Owens, 7 Vet. App. at 433. Comparatively speaking, the Board finds the May 1995 medical opinion by the private doctor to have limited probative value. There is no indication in that statement that he reviewed the veteran's records so as to have a longitudinal review prior to rendering any conclusions. Additionally, as pointed out by the VA doctor, there is no rationale provided by the private doctor to support his brief conclusory opinion. Thus, the Board finds that the evidentiary weight and probative value of the 1995 medical opinion is minimal and is outweighed by the opinion of the VA doctor. Owens v. Brown, 7 Vet. App. 429 (1995). In February 2000 written arguments, the appellant's representative argued that the December 1998 VA opinion is inadequate for reasons as discussed below. The Court is sympathetic to the appellant's concern and has recognized that the adjudication process be fair and be seen as fair. See 38 C.F.R. § 4.23; Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (declaring that because veteran's benefits "system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of fairness carries great weight"). The appellant's representative first notes that the 1998 VA doctor characterized the subject of the matter under his consideration as "Tort Claim," and thereby raised the question of adequacy of his opinion to the actual issue under appellate consideration. The Board does not find the misnaming of the topic to be more than harmless error in this case, however. A review of the file otherwise shows that the RO specifically set forth the questions to be addressed by the doctor; the doctor noted that he had reviewed the information provided by the RO; and the doctor then answered those questions. Accordingly, it does not appear that the mischaracterization of the nature of the issue in the heading of the VA doctor's response in December 1998 led to any response that was prejudicial to the appellant. Secondly, the representative noted that the VA doctor indicated that his conclusion was based on a review of medical literature. The representative points out that no literature was cited to in support of the VA doctor's conclusions. Again, the Board does not find this particular argument to be of substance so as to lessen the probative value of the weight of the VA doctor's opinion. By virtue of the doctor's profession, medical opinions are sought and are typically based on their learned background, including the study of medical literature. Therefore, the Board does not find that the doctor is required to present the supportive materials to substantiate his opinion. See Bowey v. West, 11 Vet. App. 106, 109 (1998). Although the representative indicates that this is a serious omission since there is medical literature to support an opinion that a nervous disorder can aggravate a physical condition, no such information was submitted with regard to this claim. The representative additionally indicates that a review of certain directories of medical specialists did not indicate that the VA doctor was a specialist in internal medicine or psychiatry. It is then argued that it is impossible to determine whether this VA doctor is qualified to offer an opinion in this case. In this regard, the RO followed the remand instructions in which the claims folder was to be furnished to the VA Medical Center for review by a cardiovascular specialist or other appropriate specialist to provide an opinion. Both the RO and the VA Medical Center undertook action to comply with this direction; there are copies in the claims file that highlighted the Board's instructions. There is simply nothing in the record that would cast doubt on the VA doctor's competency nor is there any indication that the RO or VA Medical Center did not fully cooperate in the discharge of its duties. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (presumption of regularity attaches to actions of public officials). Therefore, the Board finds that the representative's request for the case to be submitted to an independent medical expert (IME) for an opinion under 38 C.F.R. § 20.901 is not warranted. The Board concludes that the competent and probative evidence of record does not show that the service-connected anxiety reaction was the immediate cause of the veteran's death, was etiologically related to the immediate cause of death, or contributed substantially or materially to the cause of the veteran's death within the meaning of the VA regulations. Since the appellant has failed to establish a connection between the principal cause of the veteran's death and the service-connected disability, a basis for granting service connection for the veteran's cause of death is not demonstrated. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. When all the evidence is assembled, the Secretary 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for the cause of the veteran's death. ORDER Entitlement to service connection for the cause of the veteran's death is denied. M. SABULSKY Member, Board of Veterans' Appeals