Citation Nr: 0811776 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-11 215 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant's mother ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is the surviving son of the veteran who served on active duty from July 1968 to June 1971, and died in December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Salt Lake City RO. In September 2006, a videoconference hearing was held before the undersigned; a transcript of this hearing is associated with the claims file. In July 2007, the matter was remanded to allow the appellant's representative an opportunity to review the claims file. FINDINGS OF FACT 1. The listed cause of death is acute poisoning (polypharmacy) due to chronic obstructive pulmonary disease (COPD) and hypertension. 2. The veteran did not have any service-connected disabilities. 3. COPD and hypertension were not manifested in service; hypertension was not manifested in the veteran's first postservice year; and neither disability is shown to have been related to his service. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). June, July, September, and October 2003 letters (prior to the decision on appeal) informed the appellant of the evidence and information necessary to substantiate the claim, the information required of him to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. May 2004 correspondence advised him to submit evidence in his possession. While the appellant did not receive regarding ratings or effective dates of awards (Dingess v. Nicholson, 19 Vet. App. 473 (2006)), such notice would only be relevant if the benefit sought were being granted. The January 2006 statement of the case (SOC) and April 2006 and October 2007 supplemental SOCs (SSOCs) notified the appellant of what the evidence showed, of the governing legal criteria, and of the bases for the denial of the claim. While complete notice was not provided prior to the initial adjudication of the claim, it did not affect the essential fairness of the adjudication process. He has received all critical notice, and has had ample opportunity to participate in the adjudicatory process. The claim was readjudicated in October 2007 after all critical notice was provided. He is not prejudiced by any technical notice timing or content defect that may have occurred earlier, nor is it otherwise alleged. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The veteran's service medical records (SMRs) are associated with the claims file, and VA obtained all pertinent/identified records that could be obtained. All evidence constructively of record has been secured. Absent any competent (medical) evidence suggesting that the cause of the veteran's death may be related to his service, development for a medical nexus opinion is not warranted. 38 C.F.R. § 3.159; Duenas v. Principi, 18 Vet. App. 512, 516 (2004). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. II. Factual Background The veteran's service medical records are silent for complaints or diagnosis of hypertension or COPD. On separation examination, heart, vascular system, and lungs evaluations were normal. The veteran's blood pressure was 112/64, and a chest X-ray was interpreted as negative. In an associated medical history report he indicated that he had not had high blood pressure, shortness of breath, or a chronic cough. February 1986 VA records note blood pressure readings of 92/64 and 100/48. A September 1998 record notes that the veteran underwent an assessment to maintain his disability benefits. The diagnoses included high blood pressure. July 2001 private records show that the veteran took medication intermittently for high blood pressure, and that he also had COPD. A December 2002 private medical record notes that the veteran was admitted for observation after taking various prescription medications in unknown quantities the night before. He had been found by a police officer wandering down the street with tablets in his mouth. The assessment was acute drug overdose. A December 2002 incident report from a county sheriff's department notes that a police officer responding to a call found the veteran lying on a couch in his apartment with a black substance coming out of his mouth. Attempts to revive the veteran were unsuccessful and he was pronounced dead at a private hospital. The officer interviewed the veteran's friend who reported that the veteran had just returned from the hospital after being treated for a drug overdose. She stated that she was trying to help him after he came home from the hospital and that she had left him to go shopping. When she returned, she found him on the couch and tried to perform CPR. The veteran's final (amended) death certificate lists the cause of death as acute poisoning (polypharmacy) due to COPD and hypertension. At a December 2006 videoconference hearing, the appellant's mother testified to the effect that the veteran had a psychiatric disability (post-traumatic stress disorder) which led to his death. It was noted at the hearing that the death certificate attributed his death to polypharmacy drugs; the appellant's mother, who appeared at the hearing on his behalf, was advised of what would be necessary to establish service connection for the cause of his death, including (based on her allegation), that the veteran had a diagnosis of PTSD. III. Legal Criteria and Analysis To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service- connected disability casually shared in producing death; rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, such hypertension, may be 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, 1113; 38 C.F.R. §§ 3.307, 3.309. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neither of the two listed causes of the veteran's death (hypertension and COPD) was manifested in service; hypertension was not manifested in the first postservice year, and neither hypertension nor COPD is shown to have been related to the veteran's service. Accordingly, service connection for the cause of the veteran's death on the basis that the primary cause of death was incurred or aggravated in service (and thus is service connected) is not warranted. As the veteran did not have any service connected disabilities, service connection for the cause of his death on the basis that service-connected disability contributed to cause his death likewise is not warranted. The appellant's theory of entitlement appears to be that the veteran had a service-related PTSD which somehow (by causing the medication overdose?) caused his death. As the appellant has been advised (including via information provided to his mother who was pursuing his claim on his behalf at the videoconference hearing), to prevail based on such a theory of entitlement it must be shown, at the very least, that the veteran had PTSD related to his service, and that such disability was a factor in causing/contributing to cause his death. Here, the record does not include evidence that the veteran had PTSD; nor is there any competent (medical) evidence that a psychiatric disability was a cause or contributory cause of the veteran's death. His death certificate does not list PTSD or any other psychiatric disability as a cause, and the appellant has not submitted (or identified for VA to obtain) any medical record supporting the allegation that a psychiatric disability was a cause of the veteran's death. In light of the foregoing, the preponderance of the evidence is against the claim, and service connection for the cause of the veteran's death must be denied. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs