Citation Nr: 1134336 Decision Date: 09/14/11 Archive Date: 09/22/11 DOCKET NO. 09-39 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU), for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from January 1950 to March 1961; he died in January 2008. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In April 2011, the appellant was afforded a videoconference hearing before Milo Hawley, who is the Veterans Law Judge rendering the determination in these claims and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDINGS OF FACT 1. The Veteran died in January 2008. The death certificate, in Part I, lists the cause of death as "cerebral vascular accident." 2. During the Veteran's lifetime, service connection was in effect for posttraumatic stress disorder, evaluated as 70 percent disabling, tinnitus, evaluated as 10 percent disabling; Raynaud's syndrome, evaluated as 10 percent disabling, bilateral hearing loss, evaluated as noncompensable (0 percent disabling); residuals of a stomach scar, evaluated as noncompensable; and headaches, evaluated as noncompensable; his combined evaluation was 80 percent. 3. The Veteran's cause of death is not related to his service or service connected disability. 4. At the time of the Veteran's death, he had a January 31, 2005, claim pending for TDIU. 5. The Veteran was unemployable due to service connected disabilities from January 31, 2005. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.303, 3.312 (2010). 2. The criteria for TDIU from January 31, 2005, are met for purposes of accrued benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A and 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.1000 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The appellant contends that the Veteran's cause of death is related to his service. The appellant essentially contends that the Veteran's PTSD caused his death "due to the stress." For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the absence of such evidence, the regulations require a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.310(a), 3.312. With respect to the principal cause of death, VA regulations provide that a "service-connected disability will be considered as the principal 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." 38 C.F.R. § 3.312(b). A 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. 38 C.F.R. § 3.312. 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. Id. Service-connected diseases or injuries involving active processes affecting vital organs 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. Id. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may be granted on the basis of a post-service initial diagnosis of a disease when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). The Veteran died in January 2008. The death certificate, in Part I, lists the cause of death as "cerebral vascular accident." His age is listed as 75. During the Veteran's lifetime, service connection was in effect for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling, tinnitus, evaluated as 10 percent disabling; Raynaud's syndrome, evaluated as 10 percent disabling, bilateral hearing loss, evaluated as noncompensable (0 percent disabling); residuals of a stomach scar, evaluated as noncompensable; and headaches, evaluated as noncompensable. His combined evaluation was 80 percent. The Veteran's service treatment reports do not show treatment for any relevant symptoms, or a diagnosis of any relevant conditions. The post-service medical evidence consists of VA and non-VA reports, dated between 1994 and 2009. This evidence includes an August 1994 VA examination report which shows that the Veteran reported smoking 1/2 a pack of cigarettes per day. He was noted to have "a rather extensive smoking history which places him at a greater risk for peripheral vascular disease." He was strongly advised to quit smoking, and he was noted to have right lower extremity claudication secondary to vascular insufficiency. The report notes that there was a "strong" association between smoking and peripheral vascular disease. Overall, the VA progress notes indicate that between 2002 and 2006, the Veteran underwent procedures that included a right and left CEA (carotid endarterectomy), heart catheterization, a left lower extremity arterial bypass, and a left lower extremity angioplasty. The reports further show that he had hyperlipidemia (managed with use of Zetia and Lopid), and hypertension (managed with use of HCTZ (hydrochlorothiazide)), and that his mother and father both had a history of cerebrovascular accident (CVA). A November 2003 VA progress note shows that the Veteran was noted to have a left carotid artery stenosis of 80 to 99 percent, and that he was notified that, "he could be at risk of having a stroke without surgery and he stated that the risk of having a stroke during surgery was too high for him to consent to surgery. He has refused to see the vascular surgeons also." A December 2004 VA progress note shows that he continued to decline vascular clinic follow-up, and that he "understands risk of CVA (cerebrovascular accident) with stenosis." See also February 2005 report (noting that the Veteran refused follow-up treatment for carotid stenosis). An August 2005 VA progress note indicates that he quit smoking in July, and that he had a smoking history of 1.5 packs of cigarettes per day for 55 years. Beginning in 2003, VA progress notes show ongoing treatment for PTSD, with several notations, dated between 2006 and 2007, that the Veteran and his spouse had reported that use of medication had been "helpful." A December 2004 report states, with regard to PTSD, "He and his wife have learned to deal with issues and have managed well." A June 2005 report contains a global assessment of functioning (GAF) score of 55. These VA progress notes also show a medical history that included carotid artery occlusion, an above-the-knee right leg amputation, hypertension, and peripheral vascular disease (PVD). A VA PTSD examination report, dated in January 2004, shows complaints that included anger, flashbacks, fighting, nightmares, and social isolation. The Axis I diagnosis was chronic PTSD; the Axis V diagnosis was a GAF score of 45. A July 2005 VA examination report shows that the Veteran was noted to be wearing a nicotine patch, and that he reported he had just quit smoking. The report notes disorders that include peripheral vascular disease, carotid disease, and PTSD, with a GAF score of 45. The report also notes memory problems that were likely due to vascular dementia. Private treatment reports from P.M.F., LISW, dated between 2003 and 2005, indicate that the Veteran had symptoms that included rage, guilt, and depression. The Axis I diagnoses in a December 2004 report were PTSD, chronic and severe, and major depression. The reports contain GAF scores of 50 (in September 2003), 45 (in December 2004), and 35 (in July 2005). A report from the Mercy Medical Center, dated in January 2008, shows that the Veteran was admitted with a chief complaint of cardiopulmonary arrest, and that he was receiving CPR (cardiopulmonary resuscitation) upon arrival, however, efforts were terminated, with findings suggesting a ruptured abdominal aortic aneurysm. The assessment was cardiopulmonary arrest. A VA opinion, dated in January 2009, shows that a VA physician stated that the Veteran's C-file had been reviewed. The physician cited to medical authorities in listing the risk factors for PVD, heart attack, and stoke, which were noted to include cigarette smoking, hypertension, high levels of "bad" cholesterol, low-density lipoprotein (LDL), age, family history, and cardiovascular disease. The physician noted that the certificate of death indicated that the cause of death was a CVA, and put four question marks next to the notation. The physician was specifically requested to address the argument that the Veteran's PTSD had caused his death. The physician noted that the Veteran had been a smoker since age ten, and that he had hyperlipidemia and hypertension. The physician stated: The development o f his peripheral vascular disease was due to his multiple medical risk factors. The effect of stress on the development of atherosclerosis is less well supported in the literature and is NOT considered a major risk factor. His PTSD, per records, seemed to have been well-controlled, as well. It is very, extremely likely that he would have developed PVD even if he did not have PTSD. (emphasis in original). The Board finds that the preponderance of the evidence is against a finding that there is a nexus between the Veteran's cause of death and his service. With regard to the possibility of service connection on a direct basis, the Veteran's service treatment reports do not show any relevant treatment during service. There is no competent evidence establishing that the Veteran had a brain thrombosis, or a brain hemorrhage, that was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. The earliest medical evidence of CVA is dated no earlier than 2008. This is approximately 47 years after separation from service. This period without treatment is evidence that there was not a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent evidence to show that the Veteran's CVA was related to his service. In this regard, the Veteran is shown to have a long history of tobacco use, and to have had disorders that included PVD, hypertension, hyperlipidemia, and carotid artery occlusion. To the extent that the appellant argues that the Veteran's service-connected PTSD caused or contributed to his cause of death, there is no competent evidence to support this argument. The only competent opinion is the January 2009 VA opinion, and this opinion weighs against the claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered that the cause of death listed on the death certificate (i.e., CVA) does not appear to be consistent with the January 2008 report from Mercy Medical Center, which contains an assessment of cardiopulmonary arrest. However, even if the Board were to assume that the cause of death was cardiopulmonary arrest, there is no competent evidence of record which associates cardiopulmonary arrest (or PVD for that matter) with the Veteran's service, or a service-connected disability. In this regard, in addition to PVD and "stroke," the January 2009 VA physician's opinion discussed atherosclerosis. Accordingly, the claim must be denied. With respect to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue on appeal is based on the contention that the Veteran's cause of death, in 2008, is related to his service, which ended in 1961, or to a service-connected disability. In this case, when the Veteran's service treatment reports, and post-service medical records are considered (which indicate that the Veteran's cause of death is not related to his service, or a service-connected disability), the Board finds that the medical evidence outweighs the appellant's contentions that the Veteran's cause of death is related to his service, or a service-connected disability. In reaching this decision, the Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application in this case. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Accrued Benefits The appellant asserts that the Veteran was entitled to a total disability rating due to individual unemployability (TDIU), for the purposes of accrued benefits. At her hearing, she testified that the Veteran had a long history of many jobs, and that he left his jobs due to anger. She testified that he had increasing flashbacks and difficulty with his temper. She indicated that he had last worked about two years prior to receiving benefits from the Social Security Administration (i.e., in about 1992, see infra), and that he was received these benefits based on his age. Accrued benefits are defined as periodic monetary benefits to which an individual was entitled at death based on evidence in the file at death and due and unpaid for a period not to exceed two years prior to the last date of entitlement (i.e., the veteran's death). 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). The veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, an application for accrued benefits must be filed within 1 year after the date of death. 38 C.F.R. § 3.1000(c). In this case, at the time of the Veteran's death in January 2008, service connection was in effect for PTSD, evaluated as 70 percent disabling, tinnitus, evaluated as 10 percent disabling; Raynaud's syndrome, evaluated as 10 percent disabling, bilateral hearing loss, evaluated as noncompensable (0 percent disabling); residuals of a stomach scar, evaluated as noncompensable; and headaches, evaluated as noncompensable. His combined evaluation was 80 percent. In January 2008, the appellant filed a claim for accrued benefits. Her claim was therefore filed within one year of the date of the Veteran's death. See 38 U.S.C.A. § 5121(c). In addition, the Veteran had a claim pending at the time of his death. Specifically, in January 2005, he filed a claim for TDIU. This claim was denied in June 2006, and an appeal was perfected in January 2007. Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA' s Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on global assessment of functioning (GAF) scores. See 38 C.F.R. § 4.130. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF scores ranging between 51 and 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). In the Veteran's claim (VA Form 21-8940), received in January 2005, he indicated that he had four years of high school, and that he had last worked as a baker, in June 1990. He indicated that he had left his job due to his service-connected PTSD. A letter from the Social Security Administration (SSA), dated in September 1994, shows that the SSA determined that the Veteran was eligible for "retirement, survivors and disability insurance"/retirement benefits as of November 1994. The medical evidence is summarized as follows: A VA PTSD examination report, dated in January 2004, shows that the Veteran reported a long history of night jobs, including bartending, working in a gas station, and as a police officer, with his longest period of employment lasting about three years. He stated that he would move from job to job in large part due to getting in arguments with his boss. He further reported symptoms that included anger, fighting, daily flashbacks, and difficulty being around people and socializing. He denied homicidal or suicidal ideation. He stated that he had dropped out of high school, but that he had a GED. On examination, he was alert and oriented times three. Mood was fair and affect was full. Thought processes were goal-directed and logical. There was/were no auditory or visual hallucinations, psychosis or paranoia. There was no homicidal or suicidal ideation. Attention span, concentration, and recent and remote memory, were intact. Insight and judgment were fair. The Axis I diagnosis was chronic PTSD, and the Axis V diagnosis was a GAF score of 45. VA progress notes, dated between 2004 and 2007, show a number of treatments for PTSD, with several notations, dated between 2006 and 2007, that the Veteran and his spouse had reported that use of medication had been "helpful." A December 2004 report states, with regard to PTSD, "He and his wife have learned to deal with issues and have managed well." A June 2005 report contains a GAF score of 55. Private treatment reports from P.M.F., LISW, dated between 2003 and 2005, indicate that the Veteran had symptoms that included rage, guilt, and depression. The Axis I diagnoses in a December 2004 report were PTSD, chronic and severe, and major depression. A July 2005 report states that the Veteran has been receiving treatment twice a month for almost two years, and that he has severe PTSD that had been exacerbated by the war in Iraq, with symptoms such as social isolation, rage, mistrust of authority, and a sleep disorder. He was noted to often be tearful and to contemplate suicide. The reports contain GAF scores of 50 (in September 2003), 45 (in December 2004), and 35 (in July 2005). A July 2005 VA examination report shows that the Veteran asserted that he was precluded from gainful employment due to his PTSD. The examiner stated that the Veteran's C-file had been reviewed, and that there was not much change from his January 2004 VA examination. The Veteran was noted to complain of symptoms that included poor sleep secondary to chronic pain and noise from helicopters flying over his home to a nearby medical facility, a bad temper, and a poor short-term memory. Nightmares were reportedly improved with use of Seroquel. He denied suicidality and flashbacks. He stated that he isolated in his home. The report indicates that he had been unemployed since 1995, with a history of many short-term jobs, with his longest job lasting about three years. He reported that he had left his most recent job because the shop went out of business. On examination, thought processes were slightly tangential, and there was diminished concentration and attention. Insight and judgment were mildly impaired. Speech was spontaneous. The Axis I diagnoses were chronic PTSD, and cognitive impairment. The Axis V diagnosis was a GAF score of 45. The examiner stated that the Veteran's PTSD would limit him to a more isolated setting, but that he had vascular problems due to dementia that were more of an impedence to employment. The examiner concluded: I believe that the patient is likely unemployable based on a combination of his mental and his psychiatric illnesses. Taken alone, I do not believe that any single one of his illnesses would preclude employment; however, taken together, I believe that they are additive and do preclude employment. A VA opinion, dated in January 2009, shows that a VA physician stated that the Veteran's C-file had been reviewed. The physician noted, "His PTSD, per records, seemed to have been well-controlled." The Board finds that the evidence is in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The July 2005 VA examiner stated that the Veteran's condition had not changed much from the time of his January 2004 VA examination, and both reports contain a GAF score of 45. The examiner concluded that the Veteran was unemployable due to his many disorders, which were noted to include physical, nonservice-connected disorders. The examiner stated, "Taken alone, I do not believe that any single one of his illnesses would preclude employment," although he assigned a GAF score of 45, which indicates an inability to hold a job. He did not dissociate any of the GAF score from PTSD. Further, he did not have the opportunity to address the private treatment records, containing a GAF score of 35, because they were not yet of record. In reaching this decision, the Board has considered the private treatment reports from P.M.F., LISW, which include a GAF score of 35 (in July 2005). The January 2004 and July 2005 VA examinations are consistent in assessing the severity of the veteran's PTSD. While there is evidence that the PTSD alone would not cause him to be unemployable, there is evidence that it would have prevented him from holding a job from the time of filing in claim on January 31, 2005, until his death. In resolving all doubt in the appellant's favor the Veteran was precluded from engaging in substantial gainful employment by reason of his service-connected disabilities. Entitlement to TDIU from January 31, 2005, for accrued benefits purposes, is thus established. III. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in February 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court determined that, when adjudicating a claim for service connection for the cause of a veteran's death, VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, § 5103(a) notice for a claim for service connection for the cause of a veteran's death must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a Dependency and Indemnity Compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In this case, the VCAA notification did not specifically address the Veteran's service-connected disabilities, per Hupp. The Board finds that any deficiency in the notice to the appellant, or the timing of this notice, is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post- decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) The Board finds that any prejudice on VA's part has been overcome by the following: (1) based on the communications sent to the appellant over the course of this appeal, the appellant clearly has actual knowledge of the evidence she is required to submit in this case; and (2) based on the appellant's contentions, as well as the communications provided to the appellant by VA, it is reasonable to expect that the appellant understands what was needed to prevail. The Board notes that subsequent to the issuance of the February 2008 VCAA letter, the appellant and her representative have submitted argument which addresses what is needed to establish her claim, and in April 2011 she was afforded a hearing. In submitted argument, she and her representative have argued that the Veteran's his PTSD contributed to his death. See e.g., transcript of appellant's testimony; statement of accredited representative, dated in February 2011. These arguments demonstrate an understanding of the applicable legal criteria. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. An etiological opinion has been obtained. Simply stated, the Board finds that the service and post-service medical record provides evidence against these claims. Based on the foregoing, the Board finds that the appellant has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for the cause of the Veteran's death is denied. A TDIU from January 31, 2005, for purposes of accrued benefits is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs