07-15 031

• Court: Board of Veterans' Appeals
• Decided: December 6, 2010
• Docket: 07-15 031
• Status: Unpublished

Opinion

Citation Nr: 1045630 Decision Date: 12/06/10 Archive Date: 12/14/10

DOCKET NO. 07-15 031 ) DATE ) )

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania

THE ISSUE

Entitlement to service connection for cause of death.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

G. Jackson, Counsel

INTRODUCTION

The Veteran served on active duty from November 1942 to August 1945. He died in August 2005; the appellant is his surviving spouse.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the RO. In a January 2010 decision, the Board remanded the matter for further development of the record.

The Board reiterates that in the November 2009 Informal Hearing Presentation, the appellant also filed claims for clear and unmistakable error (CUE) in a December 1946 rating decision for failing to rate the fracture of the ulna (MG VII and VIII) and CUE in a June 1953 rating decision for failure to assign an effective date prior to April 9, 1953 for the award of a 30 percent rating for the MG III. As these claims have yet to be addressed by the RO, the Board is again referring them to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995).

FINDINGS OF FACT

1. The Veteran died in August 2005 as a result of end stage renal failure.

2. The persuasive evidence of record demonstrates a disease or injury which caused or contributed to the Veteran's death was not incurred in or aggravated by service.

CONCLUSION OF LAW

A service-connected disability did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the appellant in correspondence from the RO dated in November 2005 and January 2010. These letters notified the appellant of VA's responsibilities in obtaining information to assist the appellant in completing her claim and identified the appellant's duties in obtaining information and evidence to substantiate her claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Hupp v. Nicholson, 21 Vet. App. 342 (2007).

The appellant has been made aware of the information and evidence necessary to substantiate her claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, a medical opinion was issued, and all available evidence has been obtained in this case. Thus, the content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the January 2010 letter. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained.

Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant.

Laws and Regulations

Cause of Death

(a) General. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 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. (b) Principal cause of death. 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. (c) Contributory cause of death. (1) Contributory cause of death is inherently one not related to the principal cause. 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. 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. (2) 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. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) 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. 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. (4) 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. 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. 38 C.F.R. § 3.312 (2010)

In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service- connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1).

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, 93 (1993). The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

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.

Factual Background and Analysis

In this case, the appellant contends that the Veteran's death in August 2005 as a result of end stage renal failure was caused or materially affected by his active service. In this regard, the appellant claimed the Veteran's death was the result of a blood transfusion he received in service as a result of being wounded in action.

Service treatment records report the Veteran was shot in action in September 1944, near Corigliano, Italy, sustaining a perforating wound of the right chest and right forearm with fractures of the 8th right rib and right ulna. He had a sucking wound of the chest and developed a hemopneumothorax of the right chest cavity. The wounds were debrided and a cast was applied to the right arm. The service treatment records further document that while being treated for these injuries, the Veteran received a transfusion of 500 cc of blood.

Subsequent to service, the Veteran received treatment for his various disorders, including chronic renal failure, hepatitis C and cirrhosis. An April 1996 private treatment record indicates the Veteran was currently a non-drinker, having stopped drinking in 1965. A May 2001 private treatment report indicates that the Veteran, in pertinent part, had a history of cirrhosis secondary to alcohol abuse.

In a September 2001 private treatment record, the Veteran received treatment for "increased bruise ability in patient with known pancytopenia." The Veteran was accompanied to the examination by his wife and daughter and it was reported that all three were "pleasant, cooperative and reliable informants." It was also noted that extensive records were reviewed in detail.

The physician noted that the Veteran had been receiving treatment for pancytopenia for several years. The physician reported that the Veteran had a history of cirrhosis with ascites. In this regard, the physician reported that the "cirrhosis has been attributed to chronic hepatitis C virus infection, possibly related to multiple blood transfusions received during the Italian campaign in World War II when he was hit by six submachine gun bullets at close range in the right chest and right arm. He also consumed a 'prodigious' quantity of alcohol during his life although that use has significantly decreased recently." The physician also documented the history of chronic renal failure. On objective examination, relevant diagnoses included chronic renal failure and cirrhosis presumably due to hepatitis C plus alcohol.

In an August 2005 private treatment record, the Veteran was admitted with main diagnoses, in pertinent part, of hypertensive renal disease with renal failure, alcoholic cirrhosis of the liver, unspecified viral hepatitis with hepatic coma. During the hospital course, it was documented, in pertinent part, that the Veteran had end stage renal disease on dialysis; He was found to have ascites and questionable cirrhosis.

Subsequently, the Veteran transferred to another private medical facility for treatment. An August 2005 treatment record reports the Veteran's past medical history, including chronic renal failure for which the Veteran was dialysis dependent. The Veteran's daughter who accompanied the Veteran indicated it was due to overdosing of arthritis medications; however, the private physician reported that other private medical records indicated renal toxicity of moonshine as the cause along with nephrosclerosis. The physician noted that it was known that the Veteran had chronic cirrhosis and was hepatitis C positive. Additionally, it was noted that the Veteran ingested large amounts of alcohol over the years, which could have contributed to cirrhosis and led to portal hypertension which currently manifested with thrombocytopenia and associated ascites. The physician further noted that the Veteran had a history of ethanol abuse in the past and was apparently a big moonshine drinker.

In summary, the physician documented a "very, very colorful history of major alcohol use in the past" with current indication of the Veteran having an occasional beer. On objection examination, the impression, in pertinent part, was hepatitis C positive status with cirrhosis of the liver due to alcohol and hepatitis C and associated ascites and remote ethanol abuse, including moonshine.

In a March 2006 statement, a private physician reported that he had treated the Veteran for several years. The physician noted that the Veteran sustained a gunshot wound to the right lung during his period of service. As a result, the Veteran required blood transfusions that were later determined to be positive for the hepatitis C virus. To the physician's knowledge, the Veteran did not have any other risk factors for contraction of the virus at the time of testing positive. Thus, the physician concluded that the Veteran developed cirrhosis of the liver with subsequent hepatorenal syndrome and eventually end-stage renal disease requiring hemodialysis. The Veteran subsequently developed recurrent sepsis which was related to dialysis catheter infections, culminating in a septic episode that ultimately resulted in his death. Thus the examiner opined that the underlying cause of the Veteran's death was directly a result of the injury that the Veteran sustained during his service time.

In March 2007, a VA examiner was asked to opine as to whether the Veteran had hepatitis C, as a result of blood transfusions that he received in service due to injuries sustained during his period of service in World War II, which ultimately led to his chronic renal failure that resulted in his death. The examiner indicated that the claims file had been reviewed and found no clear indication that the Veteran had hepatitis C. In this regard, the examiner noted that certain records indicated that the Veteran had hepatitis C; however, the records did not contain laboratory data showing findings of hepatitis C. Further, there was no mention of the Veteran's hepatitis viral load. To that end, the examiner explained that in some instances, people could clear hepatitis C but would always be antibody positive. In this regard, people who clear hepatitis C would not have any long-term complication of hepatitis C.

Thus, the examiner could not determine if the Veteran had hepatitis C that was the cause of his renal failure. To make such a determination, it would need to be determined if the Veteran had a positive hepatitis C viral load; and, if the Veteran had cirrhosis, established by CT scan. A determination of whether the Veteran's renal disease was related to hepatorenal syndrome could not be made otherwise.

In compliance with the January 2010 Board remand, a VA medical opinion was obtained to determine whether there was at least a 50 percent probability or greater (at least as likely as not) that the Veteran's disabilities caused or contributed to cause his death. To that end, the examiner was requested to determine whether the Veteran was given a blood transfusion in service that at least as likely as not resulted in the renal disorders that caused the Veteran's death. In the July 2010 VA Medical Center (VAMC) opinion report, the nurse practitioner (approved by the medical doctor) indicated that the claims file had been reviewed and she documented the findings of these records. The examiner found that review of the service treatment records confirmed that the Veteran suffered gunshot wound in service, sustaining a perforating wound of the right chest and right forearm. The wounds were debrided and a cast was applied to the right arm and the Veteran eventually had a throcentesis to drain the hemothorax (blood collection) in the lung and re-expand the lung. At that time, the Veteran's hematocrit and hemoglobin were 25 and 8.5, respectively. Subsequently, the Veteran received 500 cc of blood and his subsequent hematocrit and hemoglobin were 39.5% and 13.4, respectively (such correction could only have been made by a transfusion versus the body rebuilding its own hematocrit and hemoglobin).

Subsequent to service, a September 2001 private treatment record indicated the Veteran had been receiving treatment for pancytopenia. Also documented was the Veteran's history of cirrhosis with ascites. The cirrhosis was attributed to chronic hepatitis C virus infection possibly related to the multiple blood transfusions the Veteran received for his service injuries. The record also indicated the Veteran consumed a "prodigious" quantity of alcohol during his life, although this had significantly decreased recently. The record also documented chronic renal failure, apparently attributable to the complications of hypertension. The examiner also noted the March 2006 private treatment record indicating the Veteran contracted hepatitis C as a result of the in-service blood transfusions that led to the development of cirrhosis of the liver with subsequent hepatorenal syndrome which ultimately resulted in the end-stage renal disease that caused the Veteran's death.

The examiner explained that hepatorenal syndrome (HRS) was a life-threatening medical condition that consisted of rapid deterioration in kidney function in individuals with cirrhosis or fulminate liver failure. HRS was usually fatal unless a liver transplant was performed; although, treatments, such as dialysis, could prevent the advancement of the condition. HRS could also affect individuals with cirrhosis regardless of the cause, severe alcoholic hepatitis or fulminate hepatic liver failure, and usually occurred when liver function deteriorated rapidly because of an acute injury such as infection, bleeding in the gastrointestinal tract, or overuse of diuretic medications. HRS was a relatively common complication of cirrhosis.

The examiner further explained that deteriorating liver function was believed to cause changes in the circulation that supplied the intestines, altering blood flow and blood vessel tone in the kidneys. Renal failure was a consequence of those changes in blood flow rather than direct damage to the kidneys.

The examiner determined that the Veteran did have a blood transfusion during his period of military service. Subsequently, the Veteran was diagnosed with hepatitis C many years after discharge, with no treatment or viral load documented in the claims file. Additionally, the examiner noted that the Veteran was also a heavy drinker over many years and developed cirrhosis later in life. There was no indication that the Veteran developed any acute or chronic symptoms of hepatitis C during his lifetime and no documentation to support that proposition in the claims file. Thus, the examiner concluded that it was most likely that the Veteran developed cirrhosis due to his heavy alcohol consumption, noting that he was also diagnosed with chronic renal failure in 1997.

The examiner explained that medical literature indicates that hepatic failure contributed or worsened renal failure. In this regard, the Veteran's hepatic failure was most likely secondary to cirrhosis from heavy alcohol consumption versus hepatitis C. Further, the Veteran was diagnosed with chronic renal failure in 1997 most likely leading to his end stage renal disease at the time of death. Thus, the examiner concluded that it was not likely that the hepatitis C was a contributing factor in the Veteran's death or a cause of his death. To that end, the examiner opined that it was most likely that the Veteran's alcoholic cirrhosis was the primary factor related to his death.

Based upon review of all the evidence, the Board finds the persuasive evidence of record demonstrates a disease or injury which caused or contributed to the Veteran's death was not incurred in or aggravated by service. The Board is aware that a March 2006 private treatment record indicates a relationship between the Veteran's in-service injuries and his cause of death, explaining that the Veteran sustained a gunshot wound to his right lung, which required blood transfusion that led to contraction of hepatitis C, which resulted in the development of cirrhosis of the liver with subsequent HRS that eventually led to end stage renal disease that caused the Veteran's death. To that end, the private physician indicated that the Veteran was not diabetic nor hypertensive and had no other risk factors for development of the renal disease. He made no mention of the Veteran's documented long history of alcohol abuse. The physician indicated that he had treated the Veteran for several years. The Board notes that a treating physician's opinion must certainly be considered but is not presumptively afforded greater probative weight simply because the physician has regularly treated the Veteran. See Winsett v. West, 11 Vet. App. 420, 424- 25 (1998); Guerrieri v. Brown, 4 Vet. App. 467-471-3 (1993).

In any event, there is no indication that the March 2006 physician reviewed the claims file in conjunction with reaching this conclusion. To that end, certain records, including April 1996 and September 2001 private treatment records indicate the Veteran did in fact have a history of hypertension and documents medication the Veteran took to regulate his blood pressure. Additionally, the claims file contains a plethora of private treatment records indicating the Veteran had a history of excessive alcohol use (although the record indicates the Veteran quit the excessive drinking in 1965, but continued to drink occasionally), another known risk factor in the development of the renal disease. The fact that the physician overlooked this risk factor when so many other physicians discussed it, lessens the credibility of his opinion. Thus, this physician's opinion is not adequately explained. A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet.App. 4458, 460-61 (1993). A medical opinion or examination is adequate where it is based upon consideration of the appellant's prior medical history and examinations. Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994).

By contrast, in the July 2010 VAMC medical opinion, the examiner concluded that it was not likely that the hepatitis C was a contributing factor in the Veteran's death or a cause of his death; rather, it was most likely that the Veteran's alcoholic cirrhosis was the primary factor related to his death. To that end, the examiner acknowledged that the Veteran did have a blood transfusion during his period of military service and subsequently was diagnosed with hepatitis C many years after discharge. However, there was no evidence of treatment or viral load documentation in the claims file. But, review of the claims file indicated the Veteran was a heavy drinker over the early years of his life and developed cirrhosis later in life. It was the cirrhosis from the heavy alcohol consumption, not from hepatitis C, which was the primary factor related to the Veteran's death. The physician's opinion was made after a thorough review and documentation of all the evidence of record, including the March 2006 private treatment record. Thus, the Board finds the July 2010 VAMC medical opinion most probative in determining that a service-connected disorder did not cause or contribute to cause the Veteran's death. See Madden supra.

The Board has also carefully considered the statements offered by the appellant and other family members and notes that lay persons can attest to factual matters of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds these statements regarding their observations and experiences with the Veteran competent regarding what they perceived through their senses. Further, the Board does not question that the Veteran gave up excessive drinking later in life or that he contracted hepatitis C. However, while they may sincerely believe that the Veteran's hepatitis C from blood transfusion due to in-service injury contributed to his cause of death, they are not licensed medical practitioners and are not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Therefore, their statements regarding the causation of the Veteran's death cannot be considered competent medical evidence.

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against this claim.

ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.

____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs