On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Kathy A. Leiberman, Esquire
WITNESS AT HEARING ON APPEAL
Appellant and Sgt. S.H.
ATTORNEY FOR THE BOARD
A. Shawkey, Counsel
INTRODUCTION
The veteran served on active duty from October 1944 to March
1946, October 1946 to September 1947 and December 1948 to
November 1966. He died in September 1995. The appellant is
his surviving spouse.
In a February 1996 decision by the Indianapolis, Indiana
Regional Office (RO) of the Department of Veterans Affairs
(VA), the RO denied service connection for the cause of the
veteran's death. The appellant appealed this decision to the
Board of Veterans' Appeals (Board). In August 1999, the
Board denied service connection for the cause of the
veteran's death. The appellant appealed that decision to the
United States Court of Appeals for Veterans Claims (Court).
In February 2001, pursuant to a Joint Motion for Remand, the
Court ordered that the Board decision denying service
connection for the cause of the veteran's death be vacated
and the matter remanded for readjudication in light of the
enactment of the Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).
FINDINGS OF FACT
1. All identified relevant evidence necessary for
disposition of the appeal has been obtained.
2. The veteran died in September 1995, at age 79. The death
certificate listed the causes of death as pseudomonas
septicemia, due to or as a consequence of infra-abdominal
sepsis, adult respiratory distress syndrome and respiratory
failure. Other significant conditions that contributed to
death included congestive heart failure, aortic stenosis and
coronary artery disease.
3. At the time of death, service connection was in effect
for thrombophlebitis of the left leg, residuals of
thrombophlebitis of the right leg with enlargement and
pigmentation, epidermophytosis of the feet with
onychomycosis, hiatus hernia with history of duodenal ulcer,
chronic allergic vasomotor rhinitis, malaria, and
osteoarthritis of the spine. He was assigned a combined
rating of 70 percent effective in October 1970.
4. The veteran's fatal pseudomonas syndrome and respiratory
failure is related to his service-connected deep venous
thrombophlebitis.
CONCLUSION OF LAW
Resolving all doubt in the appellant's favor, a disease or
injury of service origin contributed substantially and
materially to the cause of the veteran's death. 38 U.S.C.A.
§§ 1310, 5107(b) (West 1991); 38 C.F.R. § 3.312 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As outlined in the introductory paragraph of this decision,
pursuant to a Joint Motion for Remand, the United States
Court of Appeals for Veterans Claims in February 2001 vacated
the Board's August 1999 decision denying service connection
for the cause of the veteran's death based on the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA). To
implement the provisions of this liberalizing law, VA
promulgated regulations published at 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a)).
The Act and implementing regulations essentially eliminate
the requirement that a claimant submit evidence of a well-
grounded claim, and provides that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim, but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. It also includes new
notification provisions. Specifically, it requires VA to
notify the claimant and representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant.
Following the Court's February 2001 order vacating the
Board's August 1999 decision, additional medical evidence was
submitted to the Board regarding the issue on appeal.
Accordingly, the Board is satisfied that the facts relevant
to this claim have been properly developed and there is no
further action which should be undertaken to comply with the
provisions of the VCAA or the implementing regulations. This
is especially so when considering the favorable decision that
follows. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001)
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)).
BACKGROUND
The Board has reviewed the voluminous medical and lay
evidence of record, but will confine the discussion to the
evidence that relates to the issue of whether the veteran's
service-connected disabilities are related to his death. See
Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000);
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
The veteran's service medical records show that he was found
to be medically unfit for further military service in October
1966 due, in pertinent part, to venous insufficiency,
chronic, right lower leg, secondary to old thrombophlebitis,
with minimal objective skin stasis chances, symptomatic
despite elastic support; and, pulmonary emboli, multiple,
secondary to diagnosis #1, suspected, not proven, requiring
chronic anticoagulation therapy. The veteran's medication
included Coumadin which he began taking in service, and
Prednisone which he began taking in June 1989 for polymyalgia
rheumatica (diagnosed in May 1989).
The veteran died in September 1995. His death certificate
lists the immediate cause of death as pseudomonas due to
infra-abdominal sepsis, adult respiratory distress syndrome
and respiratory failure. Other significant conditions that
contributed to death were congestive heart failure, aortic
stenosis and coronary artery disease. An autopsy was not
performed.
At the time of the veteran's death, he was service-connected
for: thrombophlebitis of the left leg, residuals of
thrombophlebitis of the right leg with enlargement and
pigmentation, epidermophytosis of the feet with
onychomycosis, hiatus hernia and history of duodenal ulcer,
chronic allergic vasomotor rhinitis, malaria, and
osteoarthritis of the spine. He was assigned a combined
rating of 70 percent, effective in October 1970.
On record is an April 1996 statement from the veteran's
treating physician, Gary M. Ayres, M.D., who noted that the
veteran died of sepsis and had been treated with Coumadin for
a history of chronic deep venous thrombosis involving his
lower extremities. He also noted that the veteran had
rheumatoid arthritis and was debilitated from atherosclerotic
disease. He opined that "all of this contributed to [the
veteran's] death."
Also on record is an opinion by a VA physician in December
1997 who, after reviewing the veteran's medical records,
concluded by stating that he could "see no direct causal
affect of [the veteran's] demise which [could] be traced to
any of his service-connected conditions." He said that he
saw "no evidence which would support the claim that Coumadin
therapy in anyway lead to the [veteran's] demise," reasoning
that the veteran's final terminal outcome stemmed primarily
from infection due to intra-abdominal sepsis for which he had
'no active duty service-connections.'" He went on to say
that there was no evidence of uncontrolled bleeding either
during the surgical procedure or thereafter which could be
expected due to the Coumadin effect. He also noted that the
veteran had been treated with prednisone prior to developing
his jejunal diverticulum rupture due to prednisone and that
while it was possible for high does prednisone therapy to
cause gastric ulceration and perforation due to local anti-
inflammatory affects, "it [was] unclear that any evidence
would support the claim of jejunal diverticulum rupture due
to prednisone."
In October 2001, the veteran's attorney arranged for the
veteran's records, including post-service medical records,
rating decisions, physician statements and medical literature
review, to be reviewed by Craig N. Bash, M.D., a neuro-
radiologist. Based on his record review, Dr. Bash concluded
that the veteran's pseudomonas sepsis was caused by his
service-connected deep venous thrombosis (DVT) and that his
service-connected medications of Coumadin and/or NSAID's
induced his intra-abdominal abscess/sepsis. He went on to
opine that the veteran's pseudomonas sepsis and his intra-
abdominal abscess contributed directly and significantly to
his demise. He said that the veteran's sepsis was caused by
his service-connected DVT induced chronic leg ulcers or due
to his service-connected medication (Coumadin and/or NSAID)
and cited to medical text to support his opinion. He also
provided the following rationale:
The [veteran] is service connected for
his DVT---the DVT's caused to developed
[sic] venous stasis and ulceration's in
his right leg---these ulcerations led to
pseudomonas septicemia which in turn lead
to the new so called ecthyma's
gangrenosum leg ulcers and pseudomonas
septicemia resulting in his death. An
additional major contributory of death
was the fact that [the veteran] was being
treated with service connected coumadin,
NSAIDS and non-service connected
steroids. This treatment with coumadin,
steroids and NSAIDS likely led to his GI
ulcer/abscess/sepsis.---This abdominal
abscess directly contributed to his
death as documented on his death
certificate. This opinion is in
agreement with the opinion of Dr. Ayers
who stated that the [veteran's]
thrombosis, coumadin and rheumatoid
arthritis and heart disease all
contributed to his death.
ANALYSIS
When any veteran dies from a service-connected disability,
the veteran's surviving spouse, children and parents are
entitled to dependency and indemnity compensation. 38
U.S.C.A. § 1310 (West 1991). To establish service connection
for the cause of the veteran's death, the evidence must show
that a disability incurred in or aggravated by service either
caused or contributed substantially or materially to cause
death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2001).
For a service-connected disability to be the principal
(primary) cause of death, it must singly or with some other
condition be the immediate or underlying cause or be
etiologically related. For a service-connected disability to
constitute a contributory cause, it must contribute
substantially or materially, it is not sufficient to show
that it causally shared in producing death, but rather it
must be shown that there was a causal connection.
38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2001).
VA's decision-making responsibility includes determining
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
In this case, there is evidence that both supports a link
between the veteran's service-connected disabilities or
medication therefrom and his death, and evidence that negates
such a link. The Court has offered guidance on the
assessment of the probative value of medical opinion
evidence. The Court has instructed that it should be based
on the medical expert's personal examination of the patient
(if applicable), the physician's knowledge and skill in
analyzing the data, and the medical opinion that the
physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-
71 (1993). Further, the Board is charged with the duty to
assess the credibility and weight given to evidence. Klekar
v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1
Vet. App. 190, 193 (1991). Indeed, the Court has declared
that in adjudicating a claim, the Board has the
responsibility to do so. Bryan v. West, 13 Vet. App. 482,
488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618
(1992). In doing so, the Board is free to favor one medical
opinion over another, provided it offers an adequate basis
for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998);
Owens v. Brown, 7 Vet. App. 429, 433 (1995).
The evidence that supports this claim includes an April 1996
statement from the veteran's treating physician, Dr. Ayers,
who said that the veteran's use of Coumadin for his service-
connected chronic DVT, in part, contributed to his death.
The supportive evidence also includes a recent statement from
Craig N. Bash, M.D., who reviewed the veteran's records and
opined that his fatal pseudomonas sepsis was caused by his
service-connected DVT. In support of his opinion, Dr. Bash
cited to medical text, as well as provided his rationale
showing a sequential chain of events between the veteran's
service-connected DVT and death. Specifically, he proffered
that the veteran's service-connected DVT caused venous stasis
and ulcerations to develop in his right leg which led to
pseudomonas septicemia which, in turn, led to the new so
called ecthyma's gangrenosum leg ulcers and pseudomonas
septicemia, resulting in death. He also provided a second
theory of entitlement by stating that the veteran's service-
connected medications of Coumadin and/or NSAIDS induced his
intra-abdominal abscess/sepsis and that this condition,
together with his Pseudomonas sepsis, contributed directly
and significantly to his demise.
In contrast, a VA physician in December 1997 opined that
"[he could] see no direct causal affect of [the veteran's]
demise which [could] be traced to any of his service-
connected conditions." Like Dr. Bash's opinion, this
opinion is based on a review of the veteran's medical
records. The VA examiner reasoned that during the veteran's
terminal hospitalization where he underwent a surgical
procedure for a ruptured abdominal viscera, there was no
evidence of uncontrolled bleeding either during the surgery
or thereafter which could be expected due to the Coumadin
effect. He went on to say that "[he saw] no evidence which
would support the claim that Coumadin therapy in anyway lead
to the [veteran's] demise." He also said that while it was
possible for high dose prednisone therapy to cause gastric
ulceration and perforation due to local anti-inflammatory
affects, it was "unclear that any evidence would support the
claim of jejunal diverticulum rupture due to prednisone."
Notwithstanding the opinion of Dr. Ayers, the opinions by
both the VA examiner and Dr. Bash are based on a review of
the veteran's medical records and are supported by adequate
rationale. Consequently, this places the evidence in
equipoise as to the matter of whether a disability incurred
in or aggravated by the veteran's service, namely DVT, either
caused or contributed substantially or materially to cause
his death. In light of this evidence and conferring the
benefit of the doubt in favor of the appellant, her claim for
service connection for the cause of the veteran's death is
granted. 38 U.S.C.A. §§ 1310, 5107(b) (West 1991); 38 C.F.R.
§ 3.312 (2001); Gilbert, supra.
ORDER
Service connection for the cause of the veteran's death is
granted; subject to the law and regulations governing the
payment of monetary benefits.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
