Veteranclaims’s Blog

July 7, 2013

Single Judge Application, El-Amin v. Shinseki, __ Vet.App. __, No. 10-3031 (Jan. 15, 2012); Compensation for Aggravation

Excerpt from decision below:

“In El-Amin v. Shinseki, a surviving spouse sought service connection for the cause of her husband’s death, asserting that his service-connected post-traumatic stress disorder either caused or
aggravated his alcoholism, which in turn led to the cirrhosis of the liver that caused his death. __ Vet.App. __, No. 10-3031 (Jan. 15, 2012). The Court held that “‘compensation’ for . . . aggravation
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by the service-connected condition includes . . . death benefits . . . if it can be shown that the non-service-connected disability was aggravated to the degree that it contributed substantially or
materially to the production of death, combined to cause death, or aided or lent assistance to the production of death.” __ Vet.App. at __, slip op. at 3-4 (citing 38 C.F.R. § 3.312(c)).
Accordingly,the Court concluded that the Board erred by relying on a medical opinion that only addressed whether Mr. El-Amin’s service-connected disabilities directly caused his death. __ Vet.App. at __,
slip op. at 6.
In Mrs. Lindberg’s case, the medical opinion on which the Board relied to deny the claim, like the medical opinion in El-Amin, focused solely on direct causation and did not address whether
the conditions that caused Mr. Lindberg’s death might have been aggravated by his service-connected COPD.
As the Court stated in El-Amin, “[t]o be fair to the examiner . . . his focus on
direct causation appears to have been driven by the VA inquiry request for the examination.” Id.; R. at 42-43.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0062
MADELYN LINDBERG, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

BARTLEY, Judge: Madelyn Lindberg, the surviving spouse of veteran John R. Lindberg, through counsel, appeals a November 22, 2011, Board of Veterans’ Appeals (Board) decision that denied her claim for service connection for the cause of the veteran’s death. Record (R.) at 3-13.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
For the reasons that follow, the Court will set aside the November 22, 2011, decision and remand the matter for further proceedings consistent with this decision.

I. FACTS
The veteran, John R. Lindberg, served in the U.S. Coast Guard from July
1942 to November 1945. R. at 766. In January 2006, he claimed service connection for conditions including “left lung,” reporting that he was “diagnosed with fluid in [his] left lung” and that “[t]he problem has persisted over the past 60 years.” R. at 696. In August 2006, VA granted service connection for chronic obstructive pulmonary disease1
(COPD) with a disability evaluation of 30%. R. at 488-98.
1
“Chronic obstructive pulmonary disease,” also called “chronic obstructive lung disease,” is “any disorder characterized by persistent or recurring obstruction of bronchial air flow, such as chronic bronchitis,

An April 2007 radiology report indicated that he had “hyperinflation and interstitial changes
suggestive of chronic COPD” but that there was “no evidence [of] acute consolidation, effusions,
or pulmonary edema.” R. at 371. On May 24, 2008, while hospitalized, the veteran began experiencing respiratory distress, a gurgling cough, and abnormal breathing patterns. R. at 53, 116,
193. He died that day and his death certificate listed acute pulmonary edema2 as the immediate cause of death, left-sided heart failure3 and arteriosclerotic heart disease4 as underlying causes, and dementia as a contributory cause. R. at 454.
In June 2008, Mrs. Lindberg submitted a claim for service connection for the cause of the veteran’s death (R. at 452-79), indicating that the veteran was taken to a nursing home in April 2007 with “pneumonia and of course with worsening COPD.” R. at 439. In October 2008, a VA pulmonologist opined that the veteran’s “death [wa]s less likely as not caused by COPD.” R. at 335.
He explained: “There is no evidence that this patient was either diagnosed with or treated for bacterial pneumonia during a hospitalization [from April 25 to 28], 2008. [T]he cause of death is
Cardiovascular Disease which cannot be attributable to the presence of moderate COPD.” Id. In November 2008, a VA regional office (RO) denied service connection for the
veteran’s cause of
death. R. at 332-34.
In April 2009, VA received a request to reconsider the RO’s decision. R.
at 322. Included
was a letter from the veteran’s treating physician, Dr. E. Robert Harned,
that stated:
This is to certify that [John R. Lindberg] was a patient of mine. He died
on May 24th
2008 at a nursing home (Epoch)[.] His [d]iagnosis was end stage COPD . . .
which
led to acute heart failure and his ultimate demise.
asthma, or pulmonary emphysema.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
530 (32d ed. 2012)
[hereinafter “DORLAND’S”].
“Pulmonary edema” is an “abnormal, diffuse, extravascular accumulation of
fluid in the pulmonary
tissues and air spaces.” DORLAND’S at 593. “Acute” means “having a short
and relatively severe course.” Id.
at 24.
“Left-sided heart failure” is “failure of adequate output by the left
ventricle . . . with dyspnea,
orthopnea, and other signs and symptoms of pulmonary congestion and edema.”
DORLAND’S at 678.
“Dyspnea” is “breathlessness or shortness of breath; difficult or labored
respiration.” Id. at 582. “Orthopnea”
is “dyspnea that is relieved by assuming an upright position.” Id. at 1338.
“Arteriosclerotic heart disease” is “any of a group of acute or chronic
cardiac disabilities resulting
from insufficient supply of oxygenated blood to the heart.” DORLAND’S at
528, 536.
4
3
2
2

R. at 324.
In April 2009, VA continued to deny service connection. R. at 315-19. Mrs.
Lindberg
submitted a Notice of Disagreement and eventually appealed to the Board. R.
at 286, 309. In April
2011, VA received records from Epoch Nursing Home and, as a result of this
new evidence,
requested a new medical opinion. R. at 44-272. In June 2011, Dr. Matthew
Jankowich, a VA
physician, opined that “it is less likely than not that the [v]eteran’s
death was related to his
service-connected [COPD].” R. at 43. Dr. Jankowich explained:
There is nothing in the nursing home records to indicate that the [v]
eteran’s COPD
had worsened in the days prior to death, and COPD would not explain the
abrupt
episode of vomiting, followed by “foam[ing] at the mouth” which
immediately
preceded his death. There is nothing in the chart to indicate that the [v]
eteran had cor
pulmonale, or right heart failure related to lung disease such as COPD.
COPD does
not cause acute pulmonary edema, which is listed as the immediate cause of
death
on the death certificate, and does not cause left-sided heart failure,
listed as the
underlying cause of the acute pulmonary edema. There is nothing in the
medical
records to support the contention of Dr. Harned that the [v]eteran had ”
end-stage
COPD” (his COPD was moderate by P[ulmonary] F[unction] T[est]s done two
years
prior to death) that then led to acute heart failure and death.
R. at 43.
On November 22, 2011, the Board issued the decision on appeal, which
relied heavily on the
June 2011 VA medical opinion to deny service connection for the cause of
the veteran’s death. R.
at 3-15. The Board found the October 2008 VA opinion of limited probative
value because the
examiner did not review the veteran’s complete medical records, and also
concluded that VA had
obtained an adequate medical opinion and complied with the duty to assist. R. at 8, 11. This timely appeal followed.

II. ANALYSIS
A. Failure To Consider 38 C.F.R. § 3.312(c)(3)
Mrs. Lindberg argues that “because the [v]eteran’s COPD affected the vital organs of his
lungs, the Board should have considered whether it caused debilitating effects and general
impairment of health which rendered him incapable of resisting the heart conditions which caused
death.” Appellant’s Reply Brief (Br.) at 2. The Court agrees. The Board must consider all relevant evidence of record and discuss all “potentially applicable” laws and regulations. Gutierrez v.
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Principi, 19 Vet.App. 1, 7 (2004); Majeed v. Principi, 16 Vet.App. 421, 431 (2002); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104.
Section 3.312(c)(3), title 38, Code of Federal Regulations, sets forth an instance when a service-connected disability may be a contributory cause of death:
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. 38 C.F.R. § 3.312(c)(3) (2012) (emphasis added). It is well established that even if a service-connected disability is not the direct cause of death, the Board must consider whether the service-connected condition was a contributory cause of death. Schoonover v. Derwinski, 3 Vet.App. 166, 167 (1992). In Schoonover v. Derwinski, a surviving spouse sought service connection for the cause of a veteran’s death from brain metastases of a month’s duration as a consequence of a malignant melanoma of approximately two years. At the time of death, the veteran was service-connected for arteriosclerosis and hypertension. Id. at 168. On appeal from the Board’s denial of the claim, the Court in Schoonover stated:
Although the service-connected cardio-vascular condition did not cause the veteran’s
death, the Board did not reference any evidence of record to the effect that such condition, over time, did not contribute to the cause of death. If the medical evidence of record is insufficient, or in the opinion of the [Board] of doubtful weight or credibility, the [Board] is always free to supplement the record by
seeking an advisory opinion, . . . or quoting recognized medical treatises in its decision that clearly support its ultimate conclusions. Instead, the Board’s discussion dealt solely
with direct causation. Here, because the veteran’s service-connected
disorders involved “vital organs,” a more detailed discussion should have been provided under 38 C.F.R. § 3.312(c)(3).
Id. (citations and internal quotation marks omitted).
In the case on appeal, similar to Schoonover, remand is required because although the Board discussed 38 C.F.R. § 3.312(c)(1) and (c)(2), which also deals with contributory cause, the Board
failed to discuss § 3.312(c)(3). R. at 3-13. Section 3.312(c)(3) appears relevant because, based on the medical definition of COPD, see note 1, supra, COPD may qualify as an “active process”
4

affecting a “vital organ.” 38 C.F.R. § 3.312(c)(3) (2012). However, the Board must make that determination on remand. Additionally, that the veteran’s service-connected COPD was evaluated
as 30% disabling means that his COPD is not assumed to be debilitating, as would be the case if COPD had been evaluated 100% disabling; his 30% evaluation does not otherwise affect the
application of § 3.312(c)(3). Id. Therefore, whether the veteran’s
service-connected COPD may have “render[ed him] materially less capable of resisting the effects of other disease or injury
primarily causing death” is a question of fact that must be addressed by VA in the first instance, after adequate medical evidence has been obtained, as necessary. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) (“Fact-finding in veterans cases is to be done by the expert [Board], not by the Veterans Court.”).
The Secretary asserts that Mrs. Lindberg “does not point to any evidence in the record
indicating that the [v]eteran’s unchanged COPD rendered himmaterially less able to resist the effects
of pulmonary edema caused by left side heart failure.” Secretary’s Br. at 15. First, the Court notes
that, where a surviving spouse claims that a veteran’s death is service connected, the regulation does
not require that there be relevant evidence already in the record before VA is required to consider
38 C.F.R. § 3.312(c)(3). However, as noted by Mrs. Lindberg in her brief, there is, in fact, evidence
that the veteran suffered from respiratory distress on the day of his death. R. at 53 (medical report
referring to “respiratory distress”). Therefore, the Court will remand the matter. Tucker v. West, 11
Vet. App. 369, 374 (1998) (remand is appropriate remedy where Board has incorrectly applied law or provided inadequate reasons or bases).
B. Adequacy of June 2011 Medical Opinion To Satisfy § 3.312(c)
Mrs. Lindberg also argues that “the Board should have mandated . . . a medical opinion to
determine whether the [v]eteran’s COPD left him in a state where he was incapable of fighting the
pulmonary edema or other heart conditions which caused his demise” and that “a remand is needed
in order for the Board to require VA to [obtain] such an expert opinion or explain why no such opinion is necessary.” Appellant’s Br. at 7-8. The Court agrees.
In El-Amin v. Shinseki, a surviving spouse sought service connection for the cause of her husband’s death, asserting that his service-connected post-traumatic stress disorder either caused or
aggravated his alcoholism, which in turn led to the cirrhosis of the liver that caused his death. __ Vet.App. __, No. 10-3031 (Jan. 15, 2012). The Court held that “‘compensation’ for . . . aggravation
5

by the service-connected condition includes . . . death benefits . . . if it can be shown that the non-service-connected disability was aggravated to the degree that it contributed substantially or
materially to the production of death, combined to cause death, or aided or lent assistance to the production of death.” __ Vet.App. at __, slip op. at 3-4 (citing 38 C.F.R. § 3.312(c)). Accordingly,
the Court concluded that the Board erred by relying on a medical opinion that only addressed whether Mr. El-Amin’s service-connected disabilities directly caused his death. __ Vet.App. at __,
slip op. at 6.
In Mrs. Lindberg’s case, the medical opinion on which the Board relied to deny the claim, like the medical opinion in El-Amin, focused solely on direct causation and did not address whether
the conditions that caused Mr. Lindberg’s death might have been aggravated by his service-connected COPD. As the Court stated in El-Amin, “[t]o be fair to the examiner . . . his focus on
direct causation appears to have been driven by the VA inquiry request for the examination.” Id.; R. at 42-43.
On remand, the Board must obtain a VA medical opinion that
addresses whether Mr.
Lindberg’s service-connected COPD aggravated pulmonary edema, left-sided
heart failure, or
arteriosclerotic heart disease, which are listed as immediate or
underlying causes of death, and, if
so, to what degree. As the Board is aware, it is not permitted to rely on
its own unsubstantiated
medical opinion to support its decision. Colvin v. Derwinski, 1 Vet.App.
171, 175 (1991).
Therefore, on remand, the Board must ensure that it obtains adequate
medical evidence to assess
whether the veteran’s service-connected COPD aggravated the conditions
that caused his death or
otherwise contributed substantially or materially, or aided or lent
assistance, to the production of his
death.
In this regard, the Court notes a seeming discrepancy in the facts related
by Dr. Harned, the
veteran’s treating physician, and Dr. Jankowich, the VA physician who
provided a medical opinion
in June 2011. Dr. Harned referred to the veteran’s COPD at the time of his
death as “end stage”5
and
Dr. Jankowich, citing [pulmonary function test]s conducted two years
before the veteran died,
referred to the veteran’s COPD as “moderate.” R. at 43, 324. Remand will
provide the Board the
opportunity to address this issue and determine whether further factual
development is required.
“End stage” is “the late, fully developed phase of a disease.” STEDMAN’S
MEDICAL DICTIONARY
1818 (28th ed. 2006).
5
6

C. Prejudice
Mrs. Lindberg was clearly prejudiced by the Board’s failure to consider § 3.312(c)(3) and
to obtain medical evidence as to service connection for COPD based on the theory of contributory
causation or aggravation. If the Board had considered 38 C.F.R. § 3.312(c)(3) or had had sufficient
evidence as to whether Mr. Lindberg’s service-connected COPD contributed to his death or
aggravated the conditions that directly caused his death, it might have found service connection for Mr. Lindberg’s death warranted. On remand, Mrs. Lindberg is free to submit additional evidence and argument, including the arguments raised in her briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112.

III. CONCLUSION
Upon consideration of the foregoing, the Board’s November 22, 2011,
decision is SET ASIDE and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: May 2, 2013
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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