Citation Nr: 1415273 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 11-01 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran had active military service from July 1972 to May 1982. He died in August 2007, and the appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Within one year from the issuance of the October 2008 decision, the appellant submitted lay statements in support of her claim. The RO issued another rating decision in January 2009 continuing the denial of the appellant's claim. In September 2010, the appellant testified at a hearing before a Decision Review Officer (DRO). Additionally, in March 2012, the appellant testified at a video conference hearing before the undersigned. Transcripts of these hearings are of record and have been reviewed. FINDINGS OF FACT 1. The Veteran died in August 2007; the immediate cause of death was complications of morbid obesity, with sleep apnea contributing to death but not resulting in the underlying cause. 2. During the Veteran's lifetime, service connection was not in effect for any disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the appellant was sent a letter in September 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Such letter complied with Hupp, and the Board points out that service connection is not in effect for any disability. In the instant case, the appellant was never informed of how VA determines effective dates. (The type of benefits the appellant seeks does not involve the assignment of a disability rating in the event of a successful claim.) However, as the instant decision denies cause of death benefits, no effective date will be assigned. Accordingly, the notice deficiency is harmless. Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records. In some cases, it also entails obtaining a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As to service and post-service medical records, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and personnel records, as well as the Veteran's death certificate, post-service VA and private treatment records, and lay statements in support of the claim. The Board has carefully reviewed the statements of the appellant and finds that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. As to whether VA's duty to assist extends to obtaining a medical opinion, in claims seeking service connection for the cause of death, VA is required to make "reasonable efforts" to provide assistance such as a medical opinion, unless "no reasonable possibility exists that such assistance would aid in substantiating the claim." See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). In this case, the Board finds that VA is not required to obtain an opinion. The evidence establishes that the Veteran's death was caused by obesity, with a contributing factor of sleep apnea. Service records do show the Veteran was overweight in service, but obesity itself is not a disability for VA purpose, and there is no evidence that the obesity was instead associated with an underlying pathologic process in service. Nor does the evidence establish that the Veteran had sleep apnea in service or until at least 8 years after service. The only evidence linking the sleep apnea to service consists of the statements and testimony of the deceased Veteran and the appellant, neither of whom is shown by the record to have any type of medical education, training or experience. Given the absence of competent or credible evidence that the Veteran's excessive weight in service was associated with an actual disease or injury, or any competent or credible evidence that the Veteran's sleep apnea was present in service, the Board finds that a medical opinion would merely be an invitation to speculation. Consequently, there is no reasonable possibility that a medical opinion would aid in substantiating the claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after service, service connection will be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the certificate of death reflects that the Veteran died in August 2007 with an immediate cause of death of complications of morbid obesity with sleep apnea contributing to death but not resulting in the underlying cause. Prior to his death, the Veteran sought service connection for depression, hypertension, sleep apnea, left pelvic region bone spur, a back condition, and a left should bone spur. However these claims were denied in August 2007. As an initial matter, the Board notes that the Veteran was not service-connected for any condition at the time of his death. Given that the Veteran was not service-connected for any disability, including morbid obesity, it is necessary to determine whether service connection should have been established for the claimed disability. The appellant asserts that the Veteran suffered from obesity in service and, as such, service connection for the cause of the Veteran's death is warranted. A review of the Veteran's service treatment records (STRs) reveals that the Veteran had a history of obesity during military service. In his July 1972 enlistment examination, he was assessed as clinically normal. At the time of the examination he was 210 pounds and his build was described as heavy. An examination conducted in October 1976 again notes that the Veteran was clinically normal. His weight at that time was 261 pounds and his build was noted as being heavy. In February 1977, the Veteran was diagnosed as being obese. In April 1977, STRs reflect that that the Veteran was referred for possible evaluation for weight control. At that time the Veteran was 256 pounds. Diet instructions were given and the Veteran was entered into a weight program. Records dated in May 1977 note that the Veteran had an approximately 7 pound weight gain. In May 1978, the Veteran was evaluated for being overweight and given instructions to follow a 1500 calorie diet. Records dated in August 1981 note that the Veteran was overweight by 25 pounds and his condition was determined to be due to non-medical causes. His weight did not restrict him from any physical activities. The Veteran was placed on a 1200 calorie reduction diet. In a follow up evaluation, the Veteran weighed 237 pounds. It was noted that the Veteran had lost 14 pounds. The service treatment records are silent for any reference to sleep apnea, or indeed of any sleep disturbances. The Veteran's post-service VA and private treatment records note a history of hypertension, obesity, sleep apnea, chest pain, back problems and depression. However, there is no indication in the record that any of these conditions are the result of the Veteran's military service. Those records first document each of those disorders more than a decade after service. The evidence of record also includes transcripts from a DRO hearing in September 2010 and a video conference in March 2012. During both hearings, the appellant asserts that the Veteran was overweight during service and continued to gain weight thereafter. The Board notes that obesity itself is not a condition for which service connection can be granted; it is a condition, and at most, a symptom. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (No diagnostic code for obesity, but listing weight gain as a symptom in some diagnostic codes). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). There must be competent medical evidence of a current disability to support service connection, and particularities of body type, such as being overweight or underweight, do not of themselves constitute disease or disability. In the instant case, the appellant has not alleged, nor does the record show that the Veteran's obesity was a manifestation of an underlying pathologic process. Indeed, in service the Veteran's treating physicians specifically noted that his obesity was due to non-medical causes. Nor do post-service records suggests that his obesity was associated with an underlying disease process. To the extent that the appellant does contend that such a process was present, the Board finds that the question of whether obesity is a product of a disease process or another cause such as simple excessive caloric intake, is clearly a matter more suited to the realm of medical expertise. The appellant is not competent to offer an opinion on the matter, and the Board points out that none of the treating clinicians have suggested that the Veteran's obesity was a product of an underlying disease process. As for sleep apnea, the service treatment records are silent for any reference to sleep apnea or sleep disturbances, and there is no post-service evidence of sleep apnea until years after service. The appellant first met the Veteran 8 years after his discharge, and therefore has no personal knowledge of whether the Veteran had sleep apnea or symptoms thereof prior to that time. Nor is there any competent evidence linking sleep apnea to service. The Board is sympathetic to the appellant in that it is clear she sincerely believes her spouse's death was the result of military service. However, there is no competent evidence that the Veteran's obesity in service was associated with an underlying disorder, that the Veteran's sleep apnea originated in service or was otherwise related to service, or that the Veteran's death was otherwise related to service. As such, the preponderance of the evidence is against the claim and the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs