Citation Nr: 0811335 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 00-11 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from August 1940 to November 1945, and from February 1946 to March 1961. The veteran died in December 1967. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a December 1999 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied the appellant's claims for service connection for the cause of the veteran's death and for entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C.A. Chapter 35. The Board remanded this case to the RO in April 2001 and July 2004. In a March 2006 decision, the Board denied the claims. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2007, the Court granted a joint motion of the appellant and VA to vacate the March 2006 Board decision, and remand the case for further action. In November 2007, the Board again remanded the case. The RO has taken action as requested, and has returned the case to the Board for appellate review. FINDINGS OF FACT 1. The veteran died due to myocardial infarction. 2. The veteran was not diagnosed with heart disease during service. 3. Compensably disabling heart disease did not manifest within one year of the veteran's retirement from service. 4. The veteran's malaria did not cause or contribute to causing the veteran's coronary artery disease. 5. The veteran did not die of a service-connected disability. CONCLUSIONS OF LAW 1. The veteran's coronary artery disease was not service connected, and may not be presumed to be service connected. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Service-connected malaria did not cause or contribute to causing the veteran's death from coronary artery disease and myocardial infarction. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.312 (2007). 3. The veteran's survivors and dependents are not eligible for VA educational assistance. 38 U.S.C.A. Chapter 35 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cause of Death The appellant is seeking service connection for the cause of the veteran's death. She essentially contends that the veteran's heart disease began during his service, or that his service-connected malaria weakened his heart and caused or contributed to causing his death. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic disabilities, including cardiovascular-renal disease and hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). To establish service connection for the cause of a veteran's death, evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service- connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, there must have been a causal connection. 38 C.F.R. § 3.312. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. During his lifetime, the veteran was service-connected for malaria. His service medical records show treatment for malaria during service in June 1942. In December 1944, he was seen for fever, sore throat, enlarged tonsils, and marked necrotic areas on the gums. He was found to have tonsillitis and Vincent's angina, or ulcerative gingivitis. The report of a November 1945 examination of the veteran for separation from his first period of active service noted that the veteran had experienced seven attacks of malaria, with the first in June 1942 and the last in July 1944. No mouth, gum, or throat abnormalities were found at the time of that examination. In December1945, after separation from his first period of active service, the veteran filed a claim for service connection for malaria and a throat infection. In February 1946 rating decision, the Cleveland, Ohio RO granted service connection for malaria, and assigned a 0 percent, noncompensable disability rating. The RO denied service connection for a throat infection, finding that the RO did not have any chronic disorder related to a throat infection. The veteran's second period of active service was from February 1946 to March 1961. He received treatment during that period of service for injuries of the low back, left elbow, left shoulder, left knee, and left foot. The report of a July 1949 reenlistment examination noted a history of malaria in 1942 and 1944, with no symptoms since the last treatment. In the 1949 examination, the veteran's blood pressure was 120/76. In October 1955, the veteran was hit and dragged by a bus. When he was seen after the accident, he had excoriations of the left shoulder, elbow, and knee, and his blood pressure was 170/100. In April 1960, the veteran was seen with substernal chest pain and a cough. The treating practitioner's impression was upper respiratory infection. In January 1961, the veteran completed a pre-retirement medical history report. In the family history section, the veteran indicated that his father had died of a heart disorder at age 46. The veteran checked yes for a history of pain or pressure in the chest. The physician's comment section noted that there had been anterior chest pain, aching in character and lasting a day and a half, with none since 1958. The veteran also checked yes for a history of high or low blood pressure. The physician's comment section indicated that hypertension had only been noticed on one occasion. On a January 1961 pre-retirement examination of the veteran, his blood pressure was 130/90. A chest x-ray was negative. An electrocardiograph was within normal limits. The examiner indicated that examination of the heart was essentially negative. The appellant filed a claim in 1998 for service connection for the cause of the veteran's death. She has submitted numerous written statements in support of her claim, and has testified at hearings before Veterans Law Judges in April 2004 and February 2006. She has reported that the veteran received treatment for a heart attack and heart disease between his retirement in 1961 and his death in 1967. She states that some records of treatment during that period have been obtained, while other records are no longer available. In different statements, the appellant has recalled that the veteran's first heart attack occurred in April 1962, 1963, or 1964. Records in the claims file show that the veteran had an orthopedic consultation at a VA Hospital in November 1963, for left elbow symptoms. In January 1964, he submitted a claim for service connection for a left elbow disorder. In May 1964, the RO denied the claim, indicated that the veteran had not reported for a schedule VA medical examination. The Cleveland Clinic in Cleveland, Ohio, provided records of treatment of the veteran in 1964. A medical history among the records notes a history of malaria. The records reflect the veteran's report that he had been in good health until April 9, 1964, when he was awakened from a sound sleep by severe pain in his chest and arms. He reportedly was taken to the emergency room at Lakeside Hospital. In the days following the initial symptoms, EKG showed acute myocardial infarction. He had a recurrence of symptoms and a another hospitalization a week later. He was treated at the Cleveland Clinic in May and June 1964. There he underwent cardiac catheterization. The diagnosis was significant coronary artery disease, with a probable posterior myocardial infarction. The appellant has reported that the veteran died at home, in her presence. The veteran's death certificate indicates that he died in December 1967 from an acute myocardial infarction, due to coronary heart disease, with a history of a previous myocardial infarction three years earlier. The appellant and the veteran were married in 1944, and she has indicated that they knew each other for several years before that. In written statements, and in hearing testimony, the appellant noted that the veteran was sick with malaria many times during service, and that his symptoms included fever, chills, and severe headaches. She states that after his retirement from service he continued to have severe headaches, and he had ongoing problems with feeling cold. She asserts that he was never healthy and well after his retirement from service. She submitted internet articles indicating that malaria can weaken the heart. She contends that the veteran's malaria weakened his heart, and caused or contributed to his death from heart disease and heart attacks. The June 2007 joint motion emphasized the need for an opinion by a VA examiner regarding the likelihood that the veteran's death was associated with service or a service-connected disability. In October 2007, private physician G. L. W., M.D., reviewed the veteran's medical records and the VA claims file. Dr. W. expressed the opinion that the veteran's service and service- connected malaria more likely than not were significant contributing factors to his heart disease and his death. Dr. W. did not include any rationale his conclusion. The Board remanded the case in November 2007 to obtain a VA medical opinion, based on a review the claims file, to include explanations regarding the relevant questions. The Board requested that the examiner provide opinions, with explanations of the reasons and bases of those opinion, as to the likelihood either that (1) heart disorder symptoms noted during the veteran's service were manifestations of the heart disease that was diagnosed after service, or (2) the veteran's malaria affected his heart, and caused or contributed substantially to causing his death. In January 2008, a VA practitioner reviewed the claims file, including the service medical records, provided opinions on the questions presented in the Board's remand. The practitioner concluded that it was not as likely as not that anterior chest pain noted during the veteran's service was a manifestation of the heart disease that was diagnosed after service. The practitioner stated that it was unlikely that a single episode of chest pain in 1958 was a manifestation of heart disease in the veteran. The practitioner expressed the opinion it was unlikely that the veteran's service-connected malaria affected his heart and caused or contributed to his death. The practitioner stated that malaria infections could cause anemia, which in turn could cause myocardial infarction, but that such a process would occur close to the time of the malaria infection. The practitioner noted that the veteran's father had died of heart disease at age 46, and concluded that it was likely that family history was the greatest factor leading to heart disease in the veteran. The veteran reported chest pain during service, but no heart disorder was found on his 1961 service separation examination, which included an electrocardiograph. The medical evidence does not indicate that the veteran had heart disease during service. The available medical evidence indicates that the veteran reported chest pain after service in April 1964. As the onset of those symptoms was more than a year after separation from service, the veteran's heart disease may not be presumed to be service connected. No medical finding or opinion from around the time of the veteran's heart disorder treatment and death addresses any ongoing effects from malaria or any history of heart disease in service. Dr. W. and the VA practitioner provided conflicting recent opinions regarding the likely etiology of the veteran's heart disease. Both professionals reviewed the veteran's claims file. Because the VA practitioner explained the reasons for her opinions, however, those opinions carry more persuasive weight than Dr. W.'s unexplained conclusion. The preponderance of the evidence, then, is against a finding that the veteran's malaria caused his heart disease, heart attacks, and resulting death. The Board denies the claim for the cause of the veteran's death. VA provides survivors' and dependents' educational assistance to survivors and dependents of veterans who died of a service-connected disability. 38 U.S.C.A. § 3501. As the veteran did not die of a service-connected disability, his survivors are not eligible for VA educational assistance under 38 U.S.C.A. Chapter 35. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the context of a claim for 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 (2007). The RO provided the appellant with notice in July 2001, subsequent to the initial adjudication. This notice conveyed in layperson's terms the requirements for establishing service connection for a disease or injury that caused the veteran's death. This notice also clearly informed the appellant of evidence needed to establish that the veteran's death was caused by a service-connected disability. Absent from this notice was a listing of those conditions for which the veteran was service connected at the time of his death. In that sense the notice did not strictly comply with the requirements as set out in Hupp. However, because that defect did not result in prejudice to the appellant, corrective action is not required. The Board finds that the notice error did not affect the essential fairness of the adjudication because the appellant has demonstrated actual knowledge of those conditions for which the veteran was service connected at the time of his death. In her written statements and hearing testimony, the appellant asserted that the veteran's service-connected malaria caused his death. In addition, arguments made on her behalf by her representative at the Court (which resulted in the joint motion ordering an examination) further demonstrated actual knowledge of the evidence necessary to substantiate the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in supplemental statements of the case (SSOCs) issued in November 2002 and February 2008, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. While the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned, as the claim for service connection for the cause of the veteran's death was denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has obtained service medical records, assisted the appellant in obtaining evidence, obtained a medical opinion regarding the veteran's disabilities and the cause of his death, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the claims file; and the appellant has not contended otherwise. The Board concludes that VA has substantially complied with the notice and assistance requirements, and that the appellant is not prejudiced by a decision on the claim at this time. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to survivors' and dependents' educational assistance under 38 U.S.C.A. Chapter 35 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs