Citation Nr: 0302046 Decision Date: 02/03/03 Archive Date: 02/19/03 DOCKET NO. 02-03 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Jonathan E. Taylor, Counsel INTRODUCTION The veteran served on active duty from July 1941 to October 1945. He was a prisoner of war (POW) of the German government from December 18, 1944, to April 20, 1945. The veteran died in May 1983. The appellant is the veteran's widow. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2001 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). Although the appellant requested in her March 2002 substantive appeal a hearing before a member of the Board in Washington, D.C., in June 2002 she withdrew her request for a hearing. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran died in May 1983; the immediate cause of death was probable cardiac arrhythmia due to arteriosclerotic heart disease, with chronic obstructive pulmonary disease listed as a significant condition contributing to death but not resulting in the underlying cause of death. 3. The veteran was service connected for anxiety neurosis; on the date of death, the disability rating for anxiety neurosis was 10 percent. 4. Arteriosclerotic heart disease, cardiac arrhythmia, and chronic obstructive pulmonary disease were first shown many years after service, and there is no evidence that they are causally or etiologically related to the veteran's service- connected disability. 5. There is no evidence of record that edema or ischemic heart disease occurred during service including while the veteran was a POW, nor is there any evidence to relate these disorders to the veteran's period of service or a service- connected disability. 6. Entitlement to a total disability evaluation based upon individual unemployability was not pending either by a claim or by an existing rating or decision at the time of the veteran's death. 7. The veteran did not die of a service-connected disability, or have a total disability permanent in nature resulting from a service-connected disability or die while a disability so evaluated was in existence. CONCLUSIONS OF LAW 1. There is no basis to presume that ischemic heart disease was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). 2. A service-connected disability did not cause the veteran's death or contribute substantially or materially to cause his death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2002). 3. The basic eligibility requirements for entitlement to Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code are not met. 38 U.S.C.A. §§ 3500, 3501 (West 1991 & Supp. 2002); 38 C.F.R. § 3.807 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background At the appellant's October 1945 separation examination, no musculoskeletal defects or varicose veins were seen. The appellant cardiovascular system and feet were evaluated as normal. In a February 1982 statement, J. C., M.D., (Dr. C.) reported that he had treated the veteran since 1963 and that the veteran was a frequent patient. The veteran had chronic thrombophlebitis of both lower extremities. He had been on long-term anti-coagulant therapy, which was the primary reason for the frequent visits. He had been hospitalized in 1968 for pulmonary embolus and subsequent pulmonary infarction of his left lung. There was also a question of a small myocardial infarction at that time. He also had gouty arthritis of long standing, primarily involving the first metatarsophalangeal joints of both lower extremities. On examination, two to three-plus pitting pretibial edema was noted in both of the veteran's lower extremities. There were numerous superficial varicosities anteriorly. The pedal pulses were diminished but palpable. There was increased pigmentation of both ankles from the stasis dermatitis. There was slight swelling and some tenderness to deep palpation of both first metatarsophalangeal joints. Diagnoses were chronic obstructive pulmonary disease, probably arteriosclerotic heart disease, chronic anxiety reaction, gouty arthritis of both feet, and chronic thrombophlebitis of both lower extremities with edema (not controlled by long-term elastic support). The letterhead on the statement indicates that Dr. C. shared his practice with B. W., M.D. (Dr. W.). The veteran's certificate of death reflects that the veteran died in May 1983 and was dead on arrival at the community hospital at the age of 64. The immediate cause of death was probable cardiac arrhythmia, which was considered to be due to (or as a consequence of) arteriosclerotic heart disease (ASHD). Chronic obstructive pulmonary disease (COPD) was listed as an other significant condition contributing to death but not resulting in the underlying cause. No autopsy was performed. At the time of his death, the veteran was service connected for anxiety neurosis, which had been rated as 10 percent disabling since October 1981. In an August 15, 2001 statement, Dr. W. stated that he was the veteran's private physician from the mid-1960s until the veteran's death in 1983. The office records for treatment of the veteran were not available, having been disposed of approximately ten years previously. The veteran had been hospitalized in 1968 with acute thrombophlebitis of his left leg and had had a complication of a pulmonary infarction at that time. He was treated with Coumadin for a long time thereafter. The veteran was hospitalized again in 1972, at which time it was noted that he had chronic thrombophlebitis of the right leg. He had been wearing anti-emboli hose since he had had the deep vein thrombosis. The veteran died with a heart attack. He was brought to the hospital dead on arrival. Although there was no definite evidence, it was felt that the veteran's death had been due to ischemic heart disease. He had been treated for hypertension and for chronic obstructive pulmonary disease. In a March 2002 statement, the appellant opined that the veteran's death resulted from diseases caused by his time as a POW. She noted that a doctor felt that the veteran's death was due to ischemic heart disease, which is related to beriberi heart disease-one of the specific diseases for POWs. In an April 2002 statement, the appellant's representative asserted that the veteran's service-connected anxiety neurosis contributed to the onset of arteriosclerotic heart disease, which was the leading cause of the veteran's death. Analysis VA has a duty to assist claimants in the development of facts pertinent to their claims. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West Supp. 2002); see also 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2002) (VA regulations implementing the VCAA). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the claimant and the representative, if the claimant is represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West Supp. 2002); 38 C.F.R. § 3.159(b) (2002). Information means non- evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. 38 C.F.R. § 3.159(a)(5) (2002). Second, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. VCAA, 38 U.S.C.A. § 5100 et seq. (West Supp. 2002); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991); VAOPGCPREC 11- 2000 (Nov. 27, 2000) (determining that the VCAA is more favorable to claimants than the law in effect prior to its enactment). As discussed below, the RO fulfilled its duties to inform and assist the appellant on these claims. Accordingly, the Board can issue a final decision because all notice and duty to assist requirements have been fully satisfied, and the appellant is not prejudiced by appellate review. Sufficient information concerning the appellant was of record at the time that she filed her claims. The RO sent the appellant a letter dated in October 2001 that requested additional evidence. This letter notified the appellant of the type of evidence necessary to substantiate her claim. It informed her that it would assist in obtaining identified records, but that it was her duty to give enough information to obtain the additional records. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). The appellant responded that she had no additional evidence to submit. VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes that the discussion in the October 2001 letter informed the appellant of the information and evidence needed to substantiate her claims and complied with VA's notification requirements. As for VA's duty to assist a veteran, the appellant has not identified any treatment records that have not been obtained. There is no indication that relevant (i.e., pertaining to treatment for the claimed disability) records exist that have not been obtained. The veteran's death certificate is of record. Statements from his treating physicians are of record. His treating physician has indicated that all records of treatment of the veteran were destroyed more than ten years ago. As for VA's duty to obtain any medical examinations, the Board finds that obtaining a medical opinion is not warranted in this case. The VCAA requires VA to provide a medical examination or obtain a medical opinion when such an opinion or examination is necessary to make a decision on a claim. The VCAA specifically indicates that an examination is deemed "necessary" only if the evidence of record includes competent evidence that the veteran has a current disability and that the disability may be associated with the veteran's military service but the case does not contain sufficient medical evidence for a decision to be made. See 38 U.S.C.A. § 5103A(d) (West Supp. 2002); see also 38 C.F.R. § 3.159(c)(4); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In this case, as will be explained further below, the evidence of record is negative for an association between the cause of the veteran's death and his military service; therefore, obtaining a medical opinion is not warranted. The Board concludes there is sufficient evidence to evaluate the appellant's claims. The Board finds that VA has done everything reasonably possible to assist the appellant. A remand or further development of these claims would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has satisfied its duties to inform and assist the appellant in this case. Further development and further expending of VA's resources is not warranted. Any "error" to the appellant resulting from this Board decision does not affect the merits of her claims or her substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102 (2002). Having determined that the duties to inform and assist the appellant have been fulfilled, the Board must assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). 1. Service Connection for Cause of the Veteran's Death In order to establish service connection for the cause of the veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must, singly or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was an actual, causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2002). To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection for arteriosclerosis and cardiovascular renal disease including hypertension may be presumed if it became manifest to a degree of 10 percent disabling during the veteran's first year after separation from service. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2002). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). In the case of a veteran who is a former POW, certain diseases which become manifest to a degree of at least 10 percent at any time after active service, shall be considered to have been incurred in or aggravated by service, notwithstanding that there is no record of such disease during the period of service. See 38 U.S.C.A. § 1112(b) (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309(c) (2002). These diseases include beriberi and beriberi heart disease. The term beriberi heart disease includes ischemic heart disease in a former POW who had experienced localized edema during captivity. Veterans Benefits Administration (VBA) Circular 21-97-1 (June 17, 1997). Although the veteran died as a result of arteriosclerotic heart disease or ischemic heart disease, the Board finds nevertheless that the preponderance of the evidence is against the appellant's claim. As BVA Circular 21-97-1 makes clear, in order to establish entitlement under the amended regulation, the regulation requires a history of localized edema (of the feet, ankles, or legs) during captivity and the later development of ischemic heart disease. Id. at 2. In this case, the veteran did develop ischemic heart disease- arteriosclerotic heart disease-during his lifetime. It was the probable cause of his death. However, there is no evidence in the record that the veteran had localized edema during captivity. At an October 1945 examination, no edema was noted. After service, the earliest possible indication of edema or cardiovascular disease, based on the rather vague statement by Dr. C., was in 1963-almost twenty years after the veteran completed his military service. In short, none of evidence in the claims folder shows that the veteran had localized edema during captivity. Thus, there is no presumption of service incurrence of ischemic heart disease, and the evidence shows that the heart disease that caused the veteran's death and the COPD that was a contributing factor were first shown years after the veteran's separation from service, and the objective evidence does not show a causal relationship between the disability causing death and the veteran's military service. As the foregoing evidence shows, neither the veteran's military service nor any of his service-connected disabilities is considered to have been implicated in the conditions resulting in his death. Moreover, there have been no contentions made that any of those treating the veteran were of the opinion that the veteran's death was related to the veteran's service. Given, therefore, that those conditions that were linked to the veteran's death were first shown several years after service, and have not been related by any medical professional to service or a service-connected disability, there is no basis for establishing service connection for them. Similarly, there is no competent evidence suggesting that the veteran's service connected anxiety neurosis was in any way implicated in causing the veteran's death or in any way interfered with his treatment prior to his death. In view of this, there is no plausible basis for finding that a service-connected disability either caused or materially contributed to the veteran's death. In this case, there has simply been no competent medical evidence presented showing that a service-connected disability played any role in the veteran's death. Therefore, there is no basis for establishing service connection for the cause of the veteran's death, and the appellant's claim must be denied. Accordingly, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for cause of the veteran's death. 2. Entitlement to Chapter 35 Dependents' Educational Assistance Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. §§ 3500, 3501 (West 1991 & Supp. 2002); 38 C.F.R. § 3.807 (2002). As noted above, the veteran died many years after service of nonservice-connected disabilities. Because service connection has not been established for the cause of the veteran's death, it follows that the appellant is not entitled to the Dependents' Educational Assistance on this basis. At the time of the veteran's death in May 1983, his service-connected disability rating was 10 percent. Therefore, he was not in receipt of a total and permanent disability evaluation due to service-connected disability at the time of his death. Under these circumstances, the appellant does not meet the basic eligibility requirements for entitlement to Chapter 35 Dependents' Educational Assistance, and her claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Service connection for the cause of the veteran's death is denied. Entitlement to Chapter 35 Dependents' Educational Assistance is denied. BETTINA S. CALLAWAY 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.