Citation Nr: 0810646 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-14 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an effective date earlier than December 18, 2002 for the award of death pension benefits. 2. Entitlement to service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from August 1948 to November 1949. This case initially came before the Board of Veterans' Appeals (Board) on appeal from the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In February 2005, the appellant and her son testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The veteran died in July 2001. The immediate cause of death was listed as cardiorespiratory arrest due to or as a consequence of cardiomyopathy. 2. On October 25, 2001, the appellant filed a formal claim for pension benefits. 3. In November 2001, the appellant was asked to submit additional evidence regarding her net worth. She was asked to submit such evidence within 60 days. 4. The appellant submitted some evidence in December 2001, but not the specific evidence the RO had sought. 5. In March 2002, the RO denied the claim for death pension benefits stating that the appellant had not provided the information asked in the November 2001 letter. The RO informed her of the specific information it needed and that she could submit that evidence by November 21, 2002, for VA to continue processing her claim. Otherwise, it told the appellant that any evidence she submitted after that date would be considered a new claim. 6. On December 18, 2002, the appellant asked that her claim for death pension benefits be reopen[ed], and she attached additional information. 7. At the time of the veteran's death, he was service connected for loss of vision, chorioretinitis, left eye, which was 30 percent disabling, and residuals of tonsillectomy, which was noncompensably disabling. 8. The preponderance of the evidence is against a finding that a disease or injury of in-service origin either caused or contributed to the veteran's death. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 18, 2002, for the award of death pension benefits have not been met. 38 U.S.C.A. §§ 501(a); 5110(d), 5107 (West 2002); 38 C.F.R. §§ 3.158, 3.400(c)(ii) (2007). 2. The criteria for entitlement to service connection for cause of the veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to assist the veteran 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). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As to the claim for service connection for cause of the veteran's death, in a February 2003 letter, which was before initial consideration of the claim, VA informed the appellant of the evidence necessary to substantiate the claim, 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 and to submit any further evidence that was relevant to the claim. This letter did not inform her of how disability evaluations and effective dates are assigned and the type evidence which impacts those determinations. The Board finds that the appellant has not been prejudiced by this. See Bernard v. Brown, 4 Vet. App. 384 (1993). One, in a claim for service connection for cause of the veteran's death, there is no disability evaluation that is assigned even if such claim is granted. Two, as to the effective date issue, since such claim is being denied, an effective date is not being assigned. As to the appellant's claim for an earlier effective date for the award of death pension benefits, it is a downstream issue from her December 2002 application to reopen the claim for entitlement to death pension benefits. For example, VA awarded death pension benefits, and the appellant has filed a notice of disagreement arguing that she should be awarded an earlier effective date for these benefits. In this type of circumstance, VA is not required to issue a new VCAA letter. VAOPGCPREC 8-2003 (Dec. 2003). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case if the disagreement is not resolved. Id. VA issued a statement of the case in March 2004. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. The appellant has submitted private medical records that have been associated with the claims file. VA obtained a medical opinion in connection with the claim for service connection for cause of the veteran's death. VA did not provide an examination or obtain a medical opinion in connection with the claim for an earlier effective date, as this issue would not warrant an examination. See 38 U.S.C.A. § 5103A(d)(2) (West 2002). Specifically, a claim for an earlier effective date does not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2)(A) - (C) (West 2002); see also 38 C.F.R. § 3.159(c)(4)(A) - (C) (2007). The record does not otherwise indicate any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the veteran 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). Finally, it is determined that these various letters have also met the requirements of Hupp v. Nicholson, 21 Vet. App. 342 (2007). II. Death Pension Benefits The appellant argues that she should be awarded death pension benefits as of the date of the veteran's death or at least back to the date she filed her claim for death pension benefits, which was September 10, 2001. At the February 2005 hearing before the undersigned, the appellant testified that she was confused as to whom she was dealing with when filing her claim for death benefits. She stated she did not realize that the service organization she was dealing with back then was not part of VA. She noted there were issues involving her home and whether she was living in her home. The effective date of an award of death pension for which application is received within 45 days from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C.A. § 5110(d)(2). The implementing regulation provides that the effective date of death pension will be the date of VA receipt of the claim if the claim is received later than 45 days from the date of the veteran's death. 38 C.F.R. § 3.400(c)(3)(ii). The 45-day rule is no longer a requirement; however, at the time of the appellant's claim, the rule was still in effect. See id. Except as otherwise provided, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a) (2007); see 38 U.S.C.A. § 501 (West 2002). After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension based upon such evidence shall commence not earlier than the date of filing the new claim. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). The Board had carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an effective date earlier than January 1, 2003, for the award of death pension benefits. First, the appellant did not file a formal claim for death pension benefits until October 25, 2001. The July 2001 application for burial benefits was filed by the funeral home, and cannot constitute an informal claim for death benefits by the appellant. See 38 C.F.R. § 3.155. The September 10, 2001, statement from the North Carolina Division of Veterans Affairs, wherein it indicated that it was an informal claim for pension, also cannot constitute an informal claim for pension benefits, as the evidence shows such representative was not the appellant's representative at that time. See id. Rather, the appellant signed a VA Form 21-22, Appointment of Veteran's Service Organization as Claimant's Representative, on September 18, 2001, which is after the date of this submission. Regardless of when the appellant submitted her application, the result is the same, as the claim she filed prior to December 2002 either was abandoned or never rose to the status of a claim. This will be explained below. The appellant submitted a formal application for pension in October 2001. In that application, she indicated real estate in the amount of $68,000. She noted in that entry to, "See remarks." The appellant stated that the home was on the market, as she did not live there anymore. On November 21, 2001, the RO wrote a letter to the appellant and stated the following: You indicated on your application that your home was on the market. If you have sold your home, please provide the following information. In order for us to determine how this sale will affect your Department of Veterans Affairs (VA) benefits, please provide the following information. . . . This evidence should be submitted as soon as possible. If it is not received within 60 days of this letter a decision will be made based on the evidence of record. . . . In December 2001, the appellant, through her representative, submitted additional evidence. Nothing in those documents shows that the appellant responded to the above information request. In March 2002, the RO informed the appellant that it had written to her previously and asked her to send it information about her assets and monthly living expenses. It added, "We needed this information to determine whether your net worth is a bar to benefits." It stated that as a result of not having received this information, her claim was denied. However, it noted that, "If we get the evidence by November 21, 2002, we can continue processing your claim. Information received after November 21, 2002, must be considered a new claim. That means any benefits you may be eligible for can't start before the date we receive your new claim." The appellant submitted additional evidence on December 18, 2002. In February 2003, VA informed her that she had failed to respond to its November 2001 letter and that it would consider her claim for entitlement to death pension benefits only as of the December 2002 date. The Board finds that the appellant's claim for death pension benefits was abandoned when she failed to provide the very specific information the RO requested in its November 2001 letter. It reminded her in a March 2002 administrative denial that she still had not submitted that information and that as long as she could submit that information to VA by November 2002, her claim could continue to be processed. The appellant did not respond until after November 21, 2002- almost one month later and nine months after the March 2002 letter. The Board finds that her October 2001 claim for death pension benefits was abandoned in accordance with 38 C.F.R. § 3.158(a). Alternatively, the Board finds that the October 2001 application was incomplete and did not rise to the level of a valid claim for pension benefits. An "original claim" is "[a]n initial formal application on a form prescribed by the Secretary." 38 C.F.R. § 3.160(b) (2007) (emphasis added). "[A]pplicants . . . [must] submit a claim in a particular format, containing specified information, and signed by the claimant, as called for by the blocks on the application form." Fleshman v. West, 138 F.3d 1429, 1431-32 (Fed. Cir. 1998). "[W]here the applicant fails to provide critical elements of the information requested on the form and [VA] returns the form to the applicant requesting that he [or she] provide the missing items, the applicant will not have satisfied the 'in the form prescribed by the Secretary' requirement of section 5101(a) until he [or she] submits the requested information." Id. at 1432 citing 38 C.F.R. § 3.155 and 38 U.S.C.A. § 5103(a). Here, the appellant failed to submit evidence that VA had requested regarding her net worth (net worth must be determined when involving a claim for pension) and her application did not rise to the status of a "valid claim in the form prescribed by the Secretary." Id. The next time the appellant submitted a claim for death pension benefits was on December 18, 2002. The RO has assigned an effective date of January 1, 2003, which, based upon the Board's review of the evidence, is the appropriate effective date. See 38 U.S.C.A. § 5111(a) (West 2002) (payment of VA benefits is effective first day of calendar month following the month in which the award became effective); 38 C.F.R. § 3.31 (2007). The effective date cannot be earlier than this date, as this is the date of claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Board notes that at the hearing before the undersigned, the appellant argued that the Board should apply the provisions of 38 C.F.R. § 3.660(b) (2007) to the appellant's claim for an earlier effective date. See also 38 U.S.C.A. § 5110(h) (West 2002); M-21-1, part IV, 16.30. This regulation applies to a claim that is initially disallowed because of excess income and the claimant later submits new evidence to establish entitlement for the same income year. It allows for benefits to be awarded if satisfactory evidence of entitlement is received within the same or next calendar year. Those provisions would not apply to the appellant's claim. Her earlier claim was not disallowed because of excess income; rather, it was denied because VA had determined she had abandoned her claim in failing to provide evidence it deemed relevant to her claim for pension benefits. See 38 C.F.R. § 3.158. The provisions of 38 C.F.R. § 3.660(b) further provide that, "In all other cases, benefits may not be authorized for any period prior to the date of receipt of a new claim." Here, the appellant's new claim for death pension benefits was received on December 18, 2002. Finally, the appellant has alleged that she made every effort to comply with VA's request for additional information. The Board does not doubt the appellant's assertions; however, the record speaks for itself. She was asked very specific questions in the November 2001 letter. In March 2002, VA informed her she still had not answered the question asked and informed her that she had until November 21, 2002, to respond-a period of approximately eight months. The Board is sympathetic to the appellant in that she had undergone surgery and she claimed that there was some confusion regarding her submitting evidence to the county service office and thinking that he worked for VA (the implication was that she had submitted the evidence in a timely manner and that the representative had failed to forward it). Nevertheless, by one year from the time VA asked for the additional information, the appellant had not provided it. Her October 2001 claim for death pension benefits was abandoned. For the reasons stated above, the Board finds the preponderance of the evidence is against an effective date earlier than December 18, 2002, for the award of death pension benefits. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). III. Cause of the Veteran's Death The appellant claims that her husband developed a pulmonary disorder from asbestos exposure during service, which disorder contributed to the veteran's death. At the February 2005 hearing, she argued that VA had given more probative value to a negative opinion by a VA physician than the positive opinion she had submitted, wherein an Army physician had opined that the veteran had developed asbestosis from exposure to asbestos during service. She stated that VA had accused the Army physician of not reviewing the veteran's medical records, when, in fact, he had. The appellant argued that the veteran inhaled a lot of debris while in service, which caused him to have to undergo the tonsillectomy (for which the veteran was service connected). The veteran's son stated that the private treating physicians had a difficult time determining the cause of the veteran's lung problems. He described the veteran having a black spot on his lungs that was there "for his entire life" and stated they never diagnosed what that was. He argued that the veteran's lung problems began soon after the war, to include inhaling asbestos. The appellant and the veteran's son admitted that the Army physician who provided the medical opinion did not treat the veteran during his lifetime. The appellant stated the Army physician reviewed the medical records, including those from VA. She stated the veteran began having lung problems long before he complained of lung problems. The appellant admitted that none of the lung studies showed the presence of any asbestos fibers. She noted that after the veteran's service, he had been a civilian employee for the Department of the Navy and continued to work on ships. The veteran died in July 2001. The death certificate shows the immediate cause of death as cardiorespiratory arrest due to or as a consequence of cardiomyopathy. At the time of the veteran's death, he was service connected for loss of vision, chorioretinitis, left eye, which was 30 percent disabling, and tonsillectomy, which was noncompensably disabling. In a November 2002 letter, an Army physician noted that the veteran had been diagnosed with recurrent hypersensitivity pneumonitis and stated that the cause of this had "always remained a mystery to his health care providers." He stated that laboratory testing revealed it was not an autoimmune disease. The physician stated that autoimmune diseases, bacteria, and common drugs had been ruled out as causing the veteran's pulmonary condition. He noted there was one thing in the veteran's work history that had never been discussed, which was his Navy career. The physician stated that it was commonly known that ships had a high asbestos exposure and that asbestosis was known for it long latent period before manifesting symptoms. He concluded the following, in part: After careful review of [the veteran]'s medical history, laboratory data, special studies, and x-rays, it would appear the best logical conclusion of [the veteran]'s pulmonary condition is most likely attributed to his asbestos exposure, thus giving him asbestos induced pneumonoconioses or pneumonitis. In a February 2004 memorandum, a VA examiner stated he had reviewed the claims file and the letter written by the Army physician. He reported some of the veteran's medical history, such as being diagnosed with multivessel coronary artery disease in the early 1990s. He stated that a transbronchial biopsy done in July 1997 revealed no evidence of asbestos in that biopsy. He stated, "There is no mention of asbestosis in the veteran's medical record." The examiner noted the Army physician's opinion that asbestos exposure was the likely cause of the veteran's clinical situation, but that, "This was not considered the case by his physicians. In the absence of any documentation or any other suggestion, we have to state that [the Army physician]'s opinion would be pure speculation[, as] that was not the working diagnosis of his physicians." He added that in his opinion, the veteran's diagnosis of asbestosis was not supported by the medical records he had reviewed. The examiner stated that the veteran had severe restrictive lung disability with greatly reduced parameters, which would have contributed to his illness and his demise. In a claim for service connection for cause of the veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). Evidence must be presented showing that a service-connected disability was either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for heart disease, such as cardiomyopathy, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for cause of the veteran's death. No one has attempted to state that the veteran's service-connected disabilities of loss of vision of the left eye or tonsillectomy contributed to the veteran's death. No one has attempted to state that the veteran had developed cardiomyopathy during service. There is nothing in there record to suggest that the veteran developed heart disease either in service or within one year following his discharge from service. In fact, the evidence shows that he was first diagnosed with heart disease in the early 1990s, which is decades following the veteran's service and evidence against a finding that cardiomyopathy was attributable to service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The issue before the Board is whether the veteran developed a lung disability during his lifetime that had its onset during service. The Board finds that pneumonitis did not have its onset in service or from asbestos exposure while in service. The Army physician attempted to link the pneumonitis to the veteran's asbestos exposure in service. However, as pointed out by the VA physician, asbestos findings had not been shown from a transbronchial biopsy done in July 1997. The Army physician had not acknowledged that fact in his opinion. The VA physician, however, not only acknowledged that fact, but pointed out that there was no mention of asbestosis by the veteran's treating physicians, to include a finding that the veteran's pulmonary condition was a result of asbestos exposure. The VA physician concluded that the Army physician's medical opinion was "pure speculation," and explained that it was not the working diagnosis of his physicians. He determined that asbestosis was not supported by the medical records he reviewed. The Board has accorded more probative value to the VA medical opinion for several reasons. It is clear that the VA physician reviewed the private medical records, as he was able to comment on the veteran's heart disease showing up in the early 1990s. He also commented on a 1997 biopsy and the working diagnosis of the veteran's treating physicians. In making his medical opinion, the VA physician relied on the medical findings shown in these medical records. The Army physician, on the other hand, was making a conclusion based upon other causes being ruled out. Additionally, his conclusion that the veteran had an asbestos induced lung condition is contrary to the 1997 biopsy that failed to show any signs of asbestos. The VA physician had an opportunity to review the Army physician's opinion, and stated that he felt the Army physician's opinion was "pure speculation" and provided a rationale for such opinion, which was based upon objective clinical findings in the medical records. For these reasons, the Board has accorded the VA medical opinion more probative value. The appellant and the veteran's son have argued that the veteran's exposure to asbestos contributed to his death. The Board does not doubt the appellant's and her son's sincere belief that the veteran's death was related in some way to his service. Nevertheless, in this case, the appellant nor the veteran's son have not been shown to have the requisite knowledge of medical principles that would permit them to render an opinion regarding matters involving medical diagnoses or medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, the preponderance of the evidence is against a finding that a disease or injury of in-service origin either caused or contributed to the veteran's death, for the reasons stated above. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Service connection for cause of the veteran's death is denied. Entitlement to an effective date earlier than for death pension benefits is denied. ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs