Citation Nr: 0619913	
Decision Date: 07/10/06    Archive Date: 07/21/06

DOCKET NO.  03-22 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUES

1.  Entitlement to service connection for cause of death.

2.  Entitlement to dependency and indemnity compensation 
(DIC) under 38 U.S.C.A. § 1318.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Michael J. Skaltsounis, Counsel


INTRODUCTION

The appellant is the widow of the veteran who is reported to 
have had active service from May 1971 to October 1972.


FINDINGS OF FACT

1.  A July 1974 rating decision granted service connection 
for lumbosacral strain and assigned a 10 percent rating, an 
July 1975 rating decision assigned a noncompensable rating, 
an August 1988 rating granted service connection for lumbar 
disc disease and assigned a 20 percent rating, an April 1991 
rating decision increased the rating for lumbar disc disease 
to 40 percent, an August 1992 rating decision increased the 
rating for lumbar disc disease to 60 percent from January 
1991, an April 1994 rating decision continued the 60 percent 
rating for lumbar disc disease and assigned a 60 percent 
rating, effective from January 1993, and an August 1995 
rating decision granted a total disability rating based on 
individual unemployability, effective from December 1994.  
The record reflects that the veteran died in December 1999.

2.  The death certificate indicates the underlying cause of 
the veteran's death as severe metabolic acidosis, septic 
shock and metformin accumulation, and suspected 
influenza/staph pneumonia.  Another condition noted as 
contributing to death but unrelated to these causes was 
diabetes mellitus.

3.  The medical evidence establishes that the severe 
metabolic acidosis, septic shock, metformin accumulation, 
suspected influenza/staph pneumonia, and diabetes mellitus 
which caused or contributed to the veteran's death were not 
incurred in service, and establishes that service-connected 
disability, or treatment thereof, did not cause, contribute 
to, or accelerate his death.

4.  The veteran was service connected for his only service-
connected disability effective from January 1993 and was 
subsequently provided a total disability rating effective 
from December 1994; the veteran was not rated totally 
disabling continuously for a period of five years from 
service separation or for a period of ten or more years 
immediately preceding the veteran's death in December 1999, 
and benefits under 38 U.S.C.A. § 1318 are therefore not 
authorized.  


CONCLUSIONS OF LAW

1.  The death of the veteran was not caused by a disability 
incurred in or aggravated by service, nor did a service-
connected disability cause or contribute materially or 
substantially to the veteran's death.  38 U.S.C.A. §§ 1310, 
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2005).

2.  Service-connected lumbar disc disease was not rated as 
totally disabling continuously for five years from service 
separation or for a period of ten or more years immediately 
preceding the veteran's death in December 1999, and benefits 
are therefore not authorized.  38 U.S.C.A. § 1318 (West 
2002); Sabonis v. Brown, 9 Vet. App. 426 (1997).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Compliance with the Veterans Claims Assistance Act of 
2000

At the outset, the Board notes that this matter has been 
sufficiently developed pursuant to the guidelines established 
in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. 
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA).  

In this regard, the appellant was advised in a March 2001 
letter of the evidence necessary to substantiate her claims 
for service connection for cause of death and DIC under 
38 U.S.C.A. § 1318, and the respective obligations of the 
Department of Veterans Affairs (VA) and appellant in 
obtaining that evidence.  Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).

Although the March 2001 VCAA notice letter did not 
specifically request that the appellant provide any evidence 
in her possession that pertained to the claims as addressed 
in Pelegrini v. Principi, 18 Vet. App. 112 (2004), as 
demonstrated from the subsequent communications from the RO, 
the Board finds that appellant was otherwise fully notified 
of the need to give to VA any evidence pertaining to the 
claims.  All the VA requires is that the duty to notify under 
the VCAA is satisfied, and the claimants are given the 
opportunity to submit information and evidence in support of 
their claims.  Once this has been accomplished, all due 
process concerns have been satisfied.  See Bernard v. Brown, 
4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 
91996); see also 38 C.F.R. § 20.1102 (harmless error).

The Board further notes that the appellant has been provided 
with the applicable laws and regulations, and there is no 
indication that there are any outstanding pertinent medical 
records or reports that have not been obtained or that are 
not otherwise sufficiently addressed in documents or records 
already associated with the claims file.  The failure of the 
RO to provide January 2000 amendments to 38 C.F.R. § 3.22 do 
not require remand as explained more fully below.

In the written presentation to the Board, the appellant's 
representative argues that VA failed in its duty to assist by 
not obtaining quality assurance records from the VA Medical 
Center.  VA's medical quality-assurance program consists of 
systemic health care reviews carried out by or for VA for the 
purpose of improving the quality of medical care or improving 
the utilization of health care resources in VA medical 
facilities.  Such data may relate to the structure, process 
or outcome of health care provided by VA.  See 38 U.S.C.A. § 
17.500(c).  Under 38 U.S.C.A. § 5705, records created as part 
of the medical quality-assurance program are confidential and 
access is limited.  The regulations at 38 C.F.R. §§ 17.500- 
17.511 explain the provisions for maintaining confidentiality 
and limit access to the documents.

It appears from the wording of 38 C.F.R. § 17.508(a) that the 
need for quality-assurance documents for the performance of 
governmental duties does not by itself suffice to authorize 
access to quality-assurance documents, given that further 
authorization, either through one of the specific 
authorizations found in the regulations or by the direction 
of specific VA personnel, is required.  Adjudicative 
personnel are not listed among the persons authorized in 38 
C.F.R. § 17.508, nor is there any existing directive or 
manual provision that provides the requisite authorization.  
To the contrary, VA Adjudication Procedures Manual M21-1, 
Chapter 22, paragraph 3, pertaining of the development of the 
evidence relating to claims under 38 U.S.C.A. § 1151, 
expressly states that quality-assurance investigative reports 
should not be requested and that copies should not be filed 
in a claimant's claims folder.  Citing 38 U.S.C.A. § 5107, 
the manual states that these reports are confidential and 
cannot be used as evidence in the adjudication of such 
claims.

The language of 38 C.F.R. § 3.508(a) may not be construed to 
permit the procurement of quality-assurance records by VA 
personnel, including adjudication personnel, without further 
authorization.  This is particularly so in view of the fact 
that the regulations also specify that efforts must be made 
to protect the identities of peer reviewers and that notice 
of penalties for unauthorized disclosure must be provided.  
It is significant that no procedures relating to the use and 
handling of quality assurance records during claims 
adjudication or as to any controls that might be placed on 
relocation to claims folders have been established.  The 
Board does not have the authority to invalidate VA 
regulations or adjudicative manuals.  Procurement of quality 
assurance records would necessary entail their disclosure to 
the veteran's representative.  Redisclosure of quality 
assurance records is subject to the disclosure rules set 
forth in regulations §§ 17.500 through 17.511, and no 
specific reference to claims representatives is found 
therein.  See 38 C.F.R. § 17.510.  Unauthorized disclosure 
may lead to monetary penalties.  See 38 C.F.R. § 17.511.

Although VA is required under VCAA to make reasonable efforts 
to assist a claimant in obtaining evidence necessary to 
substantiate a claim for benefits, in the absence of any 
specific provisions of the law or regulations that authorize 
access to quality-assurance records for adjudicative use, the 
Board finds that it is not required to obtain such records 
pursuant to the duty to assist under the VCAA.  Moreover, the 
appellant's representative also has not presented any 
convincing argument as to how quality assurance reports would 
be relevant to this case, and speculative development in the 
hopes that such records might possibly exist pertinent to the 
appeal amount to a fishing expedition, which is not 
contemplated under the duty to assist.

The Board has also obtained a relevant medical opinion in 
this case, and the record reflects that the veteran was 
informed of this opinion and given ample opportunity to 
obtain and provide an opinion or other evidence in response.  
She provided a private medical statement from Dr. S. and 
other evidence in response to this correspondence in June 
2006, and specifically waived the RO's initial consideration 
of that evidence.  

Consequently, based on all of the foregoing, the Board finds 
that no further notice and/or development is required in this 
matter under the VCAA.


II.  Entitlement to Service Connection for Cause of Death

Background

In essence, appellant asserts that two weeks prior to the 
veteran's death, an implanted morphine infusion pump related 
to the veteran's service-connected lumbar spine disability 
ceased to function, and that this complicated the diabetes 
mellitus and coronary artery disease (CAD) that were causes 
of the veteran's death.  More specifically, the appellant 
apparently contends that the diabetes mellitus and CAD were 
aggravated due to the inactivity that arose from the lack of 
pain medication and/or chemical imbalance that resulted from 
the veteran's malfunctioning implanted morphine pump.

Determinations as to whether service connection may be 
granted for a disorder which caused or contributed to the 
cause of the veteran's death are based on the same statutory 
and regulatory provision governing determinations of service 
connection generally.  38 U.S.C.A. § 1110 (West 2002); 
38 C.F.R. §§ 3.303, 3.304 (2005).  Service connection may be 
granted for any disability resulting from disease or injury 
incurred in or aggravated by service.  38 U.S.C.A. § 1110.  
Additionally, 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 materially and substantially to cause death.  
38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2005).

None of the service medical records discloses any reference 
to metabolic acidosis, septic shock, metformin accumulation, 
suspected influenza/staph pneumonia, or diabetes mellitus.  
While the veteran's DD Form 214 does reflect 11 months and 22 
days of foreign service, it was noted that there was no 
service in Vietnam and Korea, service medical records reflect 
the veteran's receipt of treatment at a U.S. military 
facility in Taiwan from November 1971 to August 1972, and 
there is otherwise no direct evidence of Agent Orange 
exposure.  Consequently, the Board finds that there is no 
basis in this record to consider the presumptive provisions 
relating to Agent Orange exposure.  38 C.F.R. §§ 3.307, 3.309 
(2005).

VA treatment records for the period of February to May 1989 
reflect diagnoses of high blood pressure and diabetes 
mellitus.

A VA medical statement from October 1990 reflects a diagnosis 
that included diabetes mellitus and CAD.  

Private records from May 1994 reflect that the veteran 
underwent surgery at this time involving the placement of a 
Medtronic implanted intrathecal pump for his intractable low 
back pain with radiculopathy of the lower extremities.  

A private medical record from July 1995 reflects that the 
veteran's problem list included insulin-dependent diabetes 
mellitus, CAD, and metabolic acidosis.

VA records from July 1996 reflect an assessment of low back 
pain and that the veteran was very upset with treatment at VA 
and confrontational about having his pump filled with pain 
medication.  In September 1996, it was noted that the veteran 
was still using the pump.  In December 1996, it was noted 
that the pump rate had been decreased.  A December 1996 
letter from the veteran's attorney noted that the veteran had 
been told that some thought was being given to removing the 
pump.  If the pump was removed, the attorney wanted the pump 
to be salvaged.

VA records reflect that the veteran's implanted pump was 
again refilled in January 1997, June 1997, January 1998, June 
1998, and November 1998.  

VA treatment records for the period of April to December 1999 
indicate that in May 1999, the veteran came in to have the 
telemetry of his implanted pump to check the status of the 
battery.  Telemetry showed the battery alarm was enabled but 
not alarming.  The refill date was noted to be the end of 
July 1999.  His pain was noted as well-controlled at this 
time.  In November 1999, it was noted that the veteran's 
implanted pump had been beeping the previous week and then 
stopped.  Telemetry could not be performed due to a dead 
battery in the pump.  The veteran was placed on oral 
narcotics until the pump could be replaced.  A VA progress 
note from December 10, 1999 reflects that the veteran had 
elected to have his pump replaced.  The impression was failed 
morphine pump, diabetes mellitus, CAD, post-traumatic stress 
disorder, and chronic pain.  The plan was to replace the 
morphine pump.  Ten days later, it was noted that the 
veteran's mother called, indicating that the veteran had not 
been taking his oral morphine and was experiencing flu-like 
symptoms that could be an expression of withdrawal.  Because 
the veteran had diabetes, a respiratory infection with the 
"flu," and heart disease, she was encouraged to transport 
the veteran to the VA for evaluation.  

Private emergency room treatment records from December 20, 
1999 reflect that the veteran presented to the emergency 
department early that morning with tachypnea, worsening 
dyspnea, and chest congestion.  It was also noted that he had 
an infusion pump for pain that did not work and that he 
wanted it removed.  The mother of the veteran reportedly 
stated that it had run out two weeks earlier, and it was 
noted that the veteran was placed on morphine until another 
pump could be reinserted.  The diagnoses included bilateral 
pneumonitis with sepsis, severe acute lactic acidosis 
secondary to metformin, diabetes mellitus, and 
arteriosclerotic cardiovascular disease, and hypertension.

The veteran was then transferred to A. Hospital, where the 
reason for consultation was noted to be lactic acidosis, 
pneumonia, and presumed sepsis.  

The record reflects that the veteran died in December 1999.

The death certificate indicates the underlying cause of the 
veteran's death as severe metabolic acidosis, septic shock 
and metformin accumulation, and suspected influenza/staph 
pneumonia.  Another condition noted as contributing to death 
but unrelated to these causes was diabetes mellitus.

An April 2006 expert medical and pathologist opinion from Dr. 
B. notes this physician's review of the veteran's voluminous 
medical records and service records, and the veteran's death 
certificate.  In his review of the medical records, Dr. B. 
observed that more than three weeks elapsed between the 
failure of an implanted morphine infusion pump and the 
veteran's death.  He further noted that the infusion pump had 
been used over five years to address pain from lumbar spine 
disability.  He also noted appellant's allegation that the 
infusion pump failure contributed to complications of 
diabetes mellitus and CAD and led to the veteran's death, and 
that the inactivity resulting from the morphine pump failure 
aggravated both the veteran's diabetes and CAD.  

From his review of the medical literature and the veteran's 
extensive medical history, including the numerous last 
entries into his medical record at the Boise VA Medical 
Center, it was Dr. B.'s opinion that any increased disability 
associated with the veteran's morphine pump failure would not 
have increased the severity of either diabetes mellitus or 
CAD.  Thus, Dr. B. felt that the veteran's morphine pump 
failure did not cause the veteran's death.  

Dr. B. also opined that the malfunction of the veteran's 
morphine pump could not have substantially contributed to the 
worsening of the veteran's diabetes mellitus and/or CAD, nor 
could it have contributed substantially and materially to the 
veteran's death.  The examiner commented that while the 
morphine pump was still functional in July 1999, the medical 
record documented considerable polypharmacy therapy for the 
veteran's numerous medical conditions.  In addition, the 
medical record entry exactly one month prior to the veteran's 
death documented morphine pump failure during the week prior 
to that entry for which oral morphine was prescribed pending 
planned pump replacement on December 10, 1999.  During the 
interim until the December 20, 199 phone call by the 
veteran's mother, there was no documented failed analgesia 
due to the oral morphine use.  

While Dr. B. noted that relevant recent medical literature 
suggested an association between hypertension and back pain, 
he did not opine such a relationship here, and although his 
research also discovered severe drug interactions between 
antidiabetic medications and other drugs, he stated that this 
was not within either the purview or expertise of Dr. B. to 
consider further.  

Finally, Dr. B.'s review of recent articles addressing back 
pain and its co-morbidities and separately addressing 
diabetes mellitus indicated no increased complication of 
either diabetes mellitus or CAD by back pain.

Evidence provided by the appellant in June 2006 included a 
private medical statement from Dr. S. and articles regarding 
the use of narcotics for pain, both orally and by way of a 
pump implant.  One article noted that there was still 
considerable debate about whether intrathecal delivery of 
opioids provided any statistical advantage from a pain 
standpoint over oral medication delivery.  

Dr. S. opined that a patient could certainly be adversely 
affected if a pain medication in an intrathecal pump were to 
run out.  He stated that this could not only cause withdrawal 
symptoms, but certainly increase general stress to the system 
resulting in multiple other symptoms and problems.


Analysis

The record indicates that the veteran was 47 years old when 
he died in December 1999, and that a death certificate 
indicates that the underlying cause of the veteran's death 
was severe metabolic acidosis, septic shock and metformin 
accumulation, and suspected influenza/staph pneumonia, with 
diabetes mellitus noted as another condition that contributed 
to the veteran's death.  There is no medical evidence 
indicating that these conditions manifested during active 
service, or that they were causally related to the veteran's 
service-connected lumbar disc disease or the morphine pump 
that was used to treat the pain related to this service-
connected disability.  

The Board must also point out that the clinical evidence of 
record indicates that the first documented evidence of 
relevant disability occurred with diagnoses of diabetes and 
hypertension in 1989, which have never been related to the 
veteran's service or service-connected disability.  

In this case, the only evidence in support of the appellant's 
assertion that the use of the morphine pump to treat the 
veteran's service-connected lumbar disc disease contributed 
to the cause of death are the statement of Dr. S., the 
articles generally dealing with complications relating to the 
use of narcotics to treat pain, and the appellant's own 
statements.  

Turning first to Dr. S.'s opinion, without acknowledging a 
review of pertinent medical records and other documents, Dr. 
S. generally opines that a patient could certainly be 
adversely affected if a pain medication in an intrathecal 
pump were to run out, with withdrawal symptoms and increased 
general stress to the system resulting in multiple other 
symptoms and problems.  However, he did not opine that this 
happened in the veteran's case and/or that it contributed to 
the veteran's death.  

The Board would also point out that a physician's statement 
to the effect that a service-connected disability "could" be 
related to the cause of death is too speculative to support a 
claim for service connection for the cause of the veteran's 
death.  See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) 
(medical possibilities and unsupported medical opinions carry 
negligible probative weight).  Similarly, articles that 
generally note the existence of adverse effects following 
withdrawal from narcotic medication are not sufficiently 
probative to link complications involving the treatment of 
the veteran's lumbar spine disability and the cause of his 
death.  

As for the appellant's statements asserting that the 
malfunctioning pump contributed to the veteran's death, there 
is nothing in the record to show the appellant is other than 
a lay party without any medical expertise.  The United States 
Court of Appeals for Veterans Claims (Court) has held that a 
lay person can provide probative eyewitness evidence of 
visible symptoms, but he or she cannot provide probative 
evidence as to matters which require specialized medical 
knowledge acquired through experience, training, or 
education.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  
Thus, her evidentiary assertions concerning medical causation 
lack any probative value.

On the other hand, Dr. B. clearly notes that he reviewed all 
of the relevant records and reports and specifically found 
the malfunction of the veteran's morphine pump could not have 
substantially contributed to the worsening of the veteran's 
diabetes mellitus and/or CAD, nor could it have contributed 
substantially and materially to his death.  The Board further 
notes that he gave a rationale for his opinions when he 
commented that the medical record documented considerable 
polypharmacy therapy even when the pump was functioning, and 
that the veteran had been placed on oral morphine as of one 
month prior to his mother's phone call on December 20, 1999, 
without any documented failed analgesia due to oral morphine 
use during the interim.  

In that December 20, 1999 telephone call the veteran's mother 
also reportedly stated that the veteran had not been taking 
his oral morphine and she was concerned that certain symptoms 
were related to withdrawal.  Thus, any results of withdrawal 
were arguably the result of the veteran's own actions.

In summary, the Board finds that the more probative and 
persuasive evidence of record establishes that severe 
metabolic acidosis, septic shock and metformin accumulation, 
suspected influenza/staph pneumonia and diabetes mellitus had 
their onset years after active service and were not related 
to the veteran's service-connected back disability.  The 
statement of Dr. S. does not specifically state that the 
malfunction of the morphine pump was a cause of the veteran's 
death and is otherwise speculative in nature.  The articles 
proffered by appellant are too general in nature and 
therefore of minimal probative value.  In addition, 
appellant's own statements are neither competent nor 
probative of the critical issue associated with respect to 
entitlement to service connection for cause of the veteran's 
death.  Consequently, in view of the lack of evidence of 
relevant symptoms until 1989, and the more persuasive and 
probative opinions of Dr. B., the Board finds that it has no 
alternative but to conclude that a preponderance of the 
evidence is against the appellant's claim.  Nothing in the 
Board's determination is in any way intended to cast any 
doubt upon the good faith of the appellant's belief that her 
claim is valid.  The facts and the law, however, do not 
provide a basis for the Board to take favorable action on the 
record in this case.


III.  Entitlement to Benefits under 38 U.S.C.A. § 1318

With respect to the appellant's claim for benefits under 
38 U.S.C.A. § 1318, the Board would simply note that the 
veteran was not in receipt of a total disability rating until 
December 1994 and he died in December 1999.  Consequently, as 
he was not rated totally disabled by reason of service-
connected disabilities continuously for five years from the 
date of discharge or for a period of 10 years or more 
immediately preceding death, benefits under 38 U.S.C.A. 
§ 1318 are not authorized.  It has been held that in a case 
where the law is dispositive, the claim should be denied 
because of a lack of legal merit.  Sabonis v. Brown, 6 Vet. 
App. 426 (1997).  Accordingly, this claim is denied as 
lacking in entitlement under the applicable regulations.

The Board would further note that as appellant's claim was 
filed in February 2000, the Board need not consider whether 
there is any basis to consider eligibility for benefits under 
the judicial concept of "hypothetical entitlement."  VA 
amended 38 C.F.R. § 3.22 as of January 21, 2000, and in 
amending the regulation, VA's goal was to clearly express 
VA's interpretation that an award of DIC under 38 U.S.C.A. 
§ 1318 essentially depended on whether the veteran was 
receiving total disability compensation for the requisite 
period of time, or was entitled to receive the benefit but 
for clear and unmistakable error (CUE) in the adjudication of 
a claim.  Here, the appellant has not alleged CUE with 
respect to a prior rating action and her claim was filed 
after the amendment to 38 C.F.R. § 3.22.  Thus, she is not 
entitled to consideration of her claim under the concept of 
"hypothetical entitlement."  While the appellant was not 
furnished the amended versions of 38 C.F.R. § 3.22, the Board 
finds that remand is not warranted where the issue is 
dispositive as a matter of law and there is no additional 
development that could substantiate the claim.




ORDER

The claim for service connection for cause of death is 
denied.

The claim for benefits under 38 U.S.C.A. § 1318 is denied.



____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs