Citation Nr: 0005644 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-41 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C. § 1151. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The veteran had active service from December 1943 to December 1946 and died in October 1994. The appellant is the veteran's widow. This appeal is before the Board of Veterans' Appeals (the Board) from rating decisions dated in 1995, in which the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA) denied the appellant's claims for service connection for the cause of the veteran's death and for DIC benefits under the provisions of 38 U.S.C. § 1151. The Board remanded this case in April 1998, and the case has been returned for further appellate review. FINDINGS OF FACT 1. The veteran died on October [redacted], 1994, due to sepsis and disseminated intravascular coagulation due to (or as a consequence of) necrotizing fasciitis due to (or as a consequence of) cellulitis of the right hip. Diabetes mellitus was identified as a significant condition contributing, but not resulting, in the underlying cause of death. 2. During the veteran's lifetime, service connection was not in effect for any disease or disability. 3. Diabetes mellitus was first shown many years after service, and sepsis, disseminated intravascular coagulation and cellulitis of the right hip were first shown medically shortly before the veteran died. 4. No competent medical evidence has been presented or secured showing a causal relationship, or nexus, between the causes of the veteran's death and his active service. 5. No competent medical evidence has been presented or secured showing that the causes of the veteran' death can be related to his March 1972 period of VA hospitalization. CONCLUSIONS OF LAW 1. The claim of service connection for the cause of the veteran's death is not well grounded, and there is no further duty to assist the appellant in the completion of her application. 38 U.S.C.A. §§ 5103(a) and 5107(a) (West 1991). 2. The claim of entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151is not well grounded, and there is no further duty to assist the appellant in the completion of her application. 38 U.S.C.A. §§ 5103(a) and 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual summary The appellant contends that the causes which contributed substantially or materially to the veteran's death were incurred or aggravated during active service. In this respect, she appears to argue that the veteran's stomach problems, hemorrhoids, perirectal abscesses and foot infections are both related to his active service and to the causes of his death. She also appears to argue that the veteran's 1972 inpatient treatment at the VA Medical Center in Shreveport, Louisiana is also a factor which contributed to his death. In making her claims, she has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, she must present a claim which is not inherently implausible when her contentions and the evidence of record are viewed in the light most favorable to her claim. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The veteran's death certificate, dated on November 2, 1994, indicates that he died at a private hospital on October [redacted], 1994, at the age of 69. The cause of his death was listed as "sepsis and disseminated intravascular coagulation due to (or as a consequence of) necrotizing fasciitis due to (or as a consequence of) cellulitis, right hip." It was noted that the approximate interval between the onset of necrotizing fasciitis and cellulitis and his death was "days," and that the interval between the onset of sepsis and his death was "hours." Diabetes mellitus was identified as a significant condition contributing, but not resulting, in the underlying cause of death. Service medical records, to include entrance and separation examinations, are negative for treatment, manifestation or diagnosis of any significant chronic disease or disability. Post- service, the veteran underwent incision and drainage of a perirectal abscess at Confederate Memorial Medical Center in 1947 and was diagnosed with hemorrhoids by a private physician in 1951. VA diagnosed him with probable disc syndrome in 1955. In 1962, he was diagnosed with visceroptosis, recurrent peptic ulcer and gastroenteritis by a private physician. A VA examination in December 1962 indicated diagnoses of essential hypertension, history of duodenal ulcer, mildly symptomatic lumbosacral strain with x- ray evidence of minimal hypertrophic spurring of the lumbar spine, history of perirectal abscess, a painful thrombosed hemorrhoid and fissure in ano by physical findings. An August 1964 VA examination indicated an additional diagnosis of hypertensive cardiovascular disease. On March 31, 1972, he was admitted to the VA Hospital in Shreveport, Louisiana due to complaint of pressure sensation in the epigastric region, nausea, vomiting, dizziness and headaches. Following an extensive work- up and evaluation, he was discharged on April 3, 1972 with diagnoses of gastritis, benign prostatic hypertrophy and mild essential hypertension. A December 1991 examination report by Kirit S. Patel, M.D., revealed diagnoses of mild cerebrovascular insufficiency, uncontrolled non- insulin dependent diabetes mellitus (NIDDM), moderate hypertension and obesity. In a letter dated in February 1995, Edwidg Eugene, M.D., indicated his treatment of the veteran for hypertension, diabetes and osteoarthritis since June of 1994. Dr. Eugene further indicated that the veteran contracted a fulminant case of necrotizing fasciitis on October 12, 1994 and later expired at Shumpert Medical Center on October [redacted], 1994. Medical records from Shumpert Medical Center reveal that the veteran reported to the emergency room on October [redacted], 1994 with complaint of severe pain in the right thigh from the hip to the knee. Initial examination revealed abscess of the right thigh suggestive of gangrene. He was taken to surgery where debridement and excision of necrotic tissue involving the right thigh and groin area was performed. A subsequent attempt at reexcision revealed that most of the anterior aspect of the skin over the anterior aspect of the thigh, all the way down from the groin to almost the knee, was completely involved with necrotic tissue and unlikely to survive. On October [redacted], 1994, another attempt at excision and debridement was discontinued following the veteran's loss of blood and drop in blood pressure. At that point, he was in septic shock and disseminated intravascular coagulation with oozing from his wound. An attempt was made to contain the oozing with compressive dressing, sponge and needle counts, but he did not tolerate the procedure well due to the overwhelming aspect of the infection. He died the next day. During the veteran's lifetime, service connection was not in effect for any disease or disability. II. Cause of death In order to establish service connection for cause of death, the evidence of record must show that a disability incurred or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). The service- connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (1999). To be considered a contributory cause of death, it must be shown that the service- connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c) (1999). It is not sufficient to show that the service- connected disability casually shared in producing death, rather a causal connection must be shown. Id. Service- connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death. 38 C.F.R. § 3.312 (c)(3) (1999). However, in cases where the disability is static in nature and involves muscular or skeletal functions, it is generally not held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312 (c)(2) (1999). Thus, it is not generally reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was, of itself, a progressive or debilitating nature. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Service connection for the cause of death of a veteran requires medical evidence, or in certain circumstances lay evidence, of in- service occurrence or aggravation of a disease or injury, and medical evidence of a nexus between the in- service injury or disease and the cause of death. Ruiz v. Gober, 10 Vet.App. 352, 356 (1997); see also Caluza v. Brown, 7 Vet.App. 498 (1995); 38 C.F.R. § 3.303 (1999). Diabetes mellitus may be presumed to have been incurred in service if manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Upon review of the entire record, the Board first finds a diagnosis of diabetes mellitus in December 1991 which is many years after service. Additionally, sepsis, disseminated intravascular coagulation and cellulitis of the right hip were first shown medically shortly before the veteran died. These are the only disease processes identified by the medical records as contributing to the veteran's death. The absence of competent medical evidence that establishes a nexus between these disease processes which contributed to his death and his active service is dispositive in this case. The appellant has offered her own opinion in this matter but, as a layperson, she is not competent to speak to matters involving medical diagnosis or etiology. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Thus, the Board finds that the record is devoid of any probative evidence of a nexus, or causal relationship, between the causes of the veteran's death and his period of active service. Accordingly, the Board must deny the appellant's claim of service connection for the cause of the veteran's death. See Edenfield v. Brown, 8 Vet.App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). III. DIC claim under 38 U.S.C. § 1151 As stated above, the appellant appears to argue that the veteran's 1972 inpatient treatment at the VA Medical Center in Shreveport, Louisiana is also a factor which contributed to his death. The current provisions of 38 U.S.C.A. § 1151, which require that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA, only apply to claims filed on or after October 1, 1997. VA O.G.C. PREC. 01-99 (February 16, 1999). See generally Brown v. Gardner, 513 U.S. 115 (1994). The appellant's claim, which was initially adjudicated by the RO in October 1995, is governed by the former provisions of 38 U.S.C.A. § 1151 which, in pertinent part, provided that: "Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, ... and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability ..., disability or death compensation... shall be awarded in the same manner as if such disability, aggravation, or death were service- connected." The enabling regulation in effect in May 1995, 38 C.F.R. § 3.358, provided, in pertinent part, that: "Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran ... 'Necessary consequences' are those which are intended to result from, or where intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered." 38 C.F.R. § 3.358(c)(3) (1995). A well grounded claim under previous version of 38 U.S.C.A. § 1151 essentially requires medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment and medical evidence of a nexus between that asserted injury or disease and the cause(s) of the veteran's death. See Jones v. West, 12 Vet.App. 460, 464 (1999). These requirements may be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during treatment; (b) evidence showing post- treatment continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the cause of death and the post- treatment symptomatology. Id. See also Gardner, 115 S.Ct. at 556 n3 (previous version of 38 U.S.C.A. § 1151 requires proof of a causal connection between VA medical treatment and additional disability). In this case, VA medical records only show one occasion for treatment of the veteran in March 1972. At that time, he was admitted with complaint of pressure sensation in the epigastric region, nausea, vomiting, dizziness and headaches. He was diagnosed and treated for gastritis, benign prostatic hypertrophy and mild essential hypertension. Of note, he had been treated and diagnosed with gastroenteritis and hypertension since 1962. There is no competent evidence of record showing that the veteran incurred additional disability as a result of his VA treatment in 1972 and/or competent medical evidence that establishes a link between the veteran's hospitalization and his cause of death many years later. The appellant's lay opinion, in and of itself, is insufficient to well ground her claim. See Espiritu, 2 Vet. App. 492 (1992). Thus, her claim must be denied. Edenfield, 8 Vet.App. 384 (1996) (en banc). IV. Due process The United States Court of Appeals for Veterans Claims has recently held that, absent the submission and establishment of a well grounded claim, VA cannot undertake to assist a claimant in developing facts pertinent to his/her claim. Morton v. West, 12 Vet.App. 477, 486 (1999). See Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir. 1997), cert denied, ____ U.S. ____,118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. See Graves v. Brown, 8 Vet.App. 522 (1996). Review of the claims folder on appeal clearly shows that the appellant has been notified of the type of evidence needed to complete her application on both claims. In this respect, the RO has issued a Statement of the Case and subsequent Supplemental Statements of the Case which have notified her of the reasons and basis for the denial of her claims. The RO also provided the appellant with authorization forms in order to obtain the veteran's private medical records, and has attempted to obtain such records directly from each identified physician. The RO also conducted a search of VA clinical records. As conceded by the appellant, however, several of the veteran's previous treating physicians have passed away and she is unclear as to specifics regarding her husband's past medical treatment. The Board discerns no additional sources of relevant information which may be obtainable concerning the present claim. Accordingly, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See generally Wood v. Derwinski, 1 Vet.App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). ORDER Service connection for the cause of the veteran's death is denied as not well grounded. The claim for DIC benefits under the provisions of 38 U.S.C. § 1151 is denied as not well grounded. NANCY I. PHILLIPS Member, Board of Veterans' Appeals