Citation Nr: 0809670 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 06-03 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from June 1944 to November 1945. The veteran died in March 2005. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefits sought on appeal. In June 2007, the Board remanded the matter for further development. FINDINGS OF FACT 1. The veteran died in March 2005 and the immediate cause of his death was from cardiopulmonary arrest due to or as a consequence of squamous cell carcinoma of the right lower lobe due to or as a consequence of malignant pericardial effusion and tamponade. 2. At the time of the veteran's death, service connection was in effect for residuals of cold injury of the bilateral feet, post traumatic stress disorder (PTSD), degenerative joint disease of the lumbar disc, post-traumatic arthritis of the bilateral knees, hearing loss, peripheral neuropathy of the bilateral lower extremities and hypertension. 3. The veteran's service-connected disabilities did not cause his death, nor contribute substantially or materially to cause his death. 4. A disability of service origin did not cause his death, nor contribute substantially or materially to cause the veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the veteran's death are not met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 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 particular 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 section 5103(a)-compliant notice. In this case, in a June 2005 letter, issued prior to the decision on appeal, the RO provided general notice to the appellant regarding what information and evidence is needed to substantiate a claim for service connection for the cause of the veteran's death, as well as what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA and the need for the appellant to advise VA of or submit any further evidence she has in her possession that pertains to the claim. A letter advising the appellant of the evidence needed to establish an effective date was issued in October 2007. The claim was last readjudicated in November 2007. The Board notes that the June 2005 letter does not advise the appellant of the conditions for which a veteran was service connected at the time of his death, although it did indicate that the claim could be substantiated by submitting evidence showing a service-connected condition caused or contributed to his death, or by submitting evidence showing the veteran's death was caused by or contributed to by a disease or injury that began in service. However, the Board finds any insufficiency in the notice is harmless error, as the appellant had actual knowledge of the veteran's service connected conditions and that her claim for DIC could be established based on such. In this regard, in response to the June 2005 VCAA letter, the appellant noted that the veteran was a POW and had many conditions that came from that. She stated his circulation was bad and he died of cardiopulmonary arrest which could have come from his POW conditions. Additionally, in her notice of disagreement, she stated that the veteran's heart condition was secondary to his PTSD or his POW experiences. Further, on her VA Form 9, she stated that she believed her husband's death was a result of the conditions he endured while a POW and his PTSD. She stated that the veteran had many conditions that were service connected, and that his PTSD and hypertension certainly could have been a contributing factor to his cardiopulmonary arrest that was the ultimate cause of his death. The Board finds such statements reflect actual knowledge of what was needed to substantiate the claim and any defect with respect to the notice is cured. See Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); see also Sanders, 487 F.3d at 889. Moreover, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the veteran's service treatment records, post-service medical records and examination reports, and the death certificate. In addition, VA has obtained two medical opinions in conjunction with her claim. As discussed above, the appellant was notified and aware of the evidence needed to substantiate her claim for service connection for the cause of the veteran's death, the avenues through which she might obtain such evidence and the allocation of responsibilities between herself and VA in obtaining such evidence. Moreover, as the Board concludes below that the preponderance of the evidence is against the claim, any question as to an appropriate effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In determining whether a 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. 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. 38 C.F.R. § 3.312(c)(1). In this case, the appellant contends that the veteran's immediate cause of death from cardiopulmonary arrest was the result of service-connected disabilities stemming from the veteran's status as a POW. During the veteran's lifetime service connection was established for residuals of cold injury of the bilateral feet, PTSD, degenerative joint disease of the lumbar disc, post-traumatic arthritis of the bilateral knees, hearing loss, peripheral neuropathy of the bilateral lower extremities and hypertension. The veteran's certificate of death indicates that the immediate cause of his death was from cardiopulmonary arrest due to or as a consequence of squamous cell carcinoma of the right lower lobe due to or as a consequence of malignant pericardial effusion and tamponade. The veteran's service medical records reveal no findings of lung cancer. His lungs and chest x-ray were normal on his separation examination. An August 2005 VA medical opinion reflects that the examiner reviewed the record, noting that the cause of death was cardiopulmonary arrest due to squamous cell carcinoma due to malignant pericardial effusion and tamponade. The examiner stated that none of the above is related to any of the veteran's service-connected disabilities. The examiner further noted that the veteran did not have hypertension. As the above opinion was premised on the erroneous assumption that the veteran did not have hypertension, another medical opinion was obtained. An October 2007 VA medical opinion reflects a review of the record, noting that the veteran's hypertension dated back to around 1992 and that his blood pressure was generally in good control up until his demise, with occasional hypostatic drops resulting in holding of medication. The examiner then listed the veteran's risk factors for cardiovascular disease: 1) 150 pack-year history of smoking, though he quit years before his death; 2) obesity; 3) hypercholesterolemia (on medication); 4) hypertension; 5) diabetes mellitus (on medication); and 6) sedentary lifestyle in his later years. The examiner noted that prior to his death the veteran had had no cardiac events but developed a malignant pleural and pericardial effusion that caused a cardiac tamponade, which was treated by creating a pericardial window to drain the fluid. The examiner also noted that a February 2005 cardiogram revealed atrial fibrillation that reverted to a normal sinus rhythm on EKG of March 2005, which suggested a right intraventricular conduction delay. The examiner stated that the veteran's hypertension was not responsible for his squamous cell carcinoma but that the squamous cell carcinoma was directly responsible for the malignant pericardial effusion. The examiner explained that a tamponade occurs when the fluid builds up and expands against the resistant pericardium, which causes an increase in pressure against the heart, impeding its effort to pump blood. Therefore, the examiner stated that the hypertension was in no way responsible for the tamponade, to the extent that the tamponade contributed to the veteran's death. The examiner then considered the extent to which the veteran's hypertension might have contributed to his heart disease, diagnosed as coronary artery disease. The examiner stated that hypertension was but one of six risk factors in the veteran's medical history, that the hypertension was generally in control over the two years prior to his death, and that the hypertension was under control during his terminal admission, with the exception of hypotensive episodes. In this regard, the examiner stressed that the veteran experienced HYPOTENSIVE episodes. The examiner stated that the veteran's cardiac arrhythmia (atrial fibrillation) had resolved. Given the above, the examiner stated that the hypertension did not contribute substantially or materially to the cause of the veteran's heart disease. The examiner added that, although the veteran had coronary artery disease, he did not die primarily from his heart disease, with cardiopulmonary arrest being the common terminal event at the end-stage of life. The examiner concluded that the veteran's service-connected hypertension did not contribute substantially or materially to the cause of death, combine to cause death, or aid or lend assistance to the production of the veteran's death from cardiopulmonary arrest due to or as a consequence of squamous cell carcinoma of the right lower lobe due to or as a consequence of malignant pericardial effusion and tamponade. The examiner stated that the veteran's hypertension did not cause the squamous cell carcinoma that led to the cardiac tamponade and the veteran did not die as a result of heart disease, regardless of whatever influence the hypertension may have played in the development of coronary artery disease. Given the above, the Board finds that the veteran's hypertension did not cause or contribute substantially or materially to cause his death. In addition, there is no evidence suggesting any of the veteran's other service- connected disabilities contributed substantially or materially to cause his death. Furthermore, the record fails to show that any disability of service origin contributed substantially or materially to cause the veteran's death. The Board acknowledges the appellant's contentions that the cause of the veteran's death is related to service. The Board observes, however, that she, as a layperson, is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a claimed medical condition. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Board recognizes the hardships endured by the veteran in service and greatly appreciates his service to our country, the Board is constrained to find that the preponderance of the evidence is against a finding of service connection for the cause of the veteran's death. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs