Citation Nr: 0811883	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  06-12 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

Entitlement to service connection for the cause of the 
veteran's death.


REPRESENTATION

Appellant represented by:	New York State Division of 
Veterans' Affairs


ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel




INTRODUCTION

The appellant is the surviving spouse of a veteran who served 
on active duty from February 1943 to November 1945.  The 
veteran died in November 2004.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2005 rating decision by the 
Buffalo, New York, Regional Office (RO) of the Department of 
Veterans Affairs (VA).


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issue on appeal was obtained.

2.  The veteran died in November 2004 as a result of sudden 
cardiac death, the approximate interval between onset and 
death was less than 24 hours, due to or as a consequence of 
hypertension, cerebrovascular disease and diabetes of 
longstanding nature.  World War II gunshot wound to the neck 
was noted as an other significant condition contributing to 
death but not related to cause of death.  

3.  At the time of his death, the veteran was service-
connected for aphonia, paralysis left laryngeal nerve and 
vocal cords due to gunshot wound of the neck, rated as 50 
percent disabling, scar, gunshot wound of the neck with 
traumatic neuritis of the ulnar nerve, rated as 30 percent 
disabling, Horner's syndrome, rated as 10 percent disabling, 
and scar, shrapnel wound, right calf, rated as 10 percent 
disabling, for a total combined rating of 70 percent; a total 
disability rating based on individual unemployability due to 
service-connected disabilities was in effect from April 1997.

4.  The persuasive evidence demonstrates a disease or injury 
which caused or contributed to the veteran's death was not 
incurred in or aggravated by service.


CONCLUSION OF LAW

A disability of service origin did not cause or contribute 
substantially or materially to cause the veteran's death.  38 
U.S.C.A. §§ 1110, 1116, 1310, 5103A, 5107 (West 2002 & Supp. 
2006); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a)), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) have been fulfilled 
by information provided to the appellant in a letter from the 
RO dated in January 2005.  (See 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 
(2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See 
also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), 
reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  
The appellant filed her claim in November 2004.  

Consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006), the RO ideally should have sent notice which 
discussed the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) with regard to effective 
dates and disability ratings.  It did not do so.  To the 
extent that there is any perceived technically inadequate 
notice, the Board finds no prejudice to the appellant in 
proceeding with the issuance of a final decision.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the 
Board addresses a question that has not been addressed by the 
agency of original jurisdiction, the Board must consider 
whether the claimant has been prejudiced thereby).  The 
appellant has been thoroughly informed consistent with 
controlling law, and has not indicated she has any additional 
evidence.  As the Board concludes below that the 
preponderance of the evidence is against the claim, any 
questions as to the appropriate effective date to be assigned 
is rendered moot.  Moreover, any failure in the timing of 
VCAA notice by the RO constituted harmless error.  See also 
Conway v. Principi, 353 F.3d 1369, 1374 (2004).  There has 
been no prejudicial error in the duty to inform the veteran.  
See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and 
Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007)).

Based on the foregoing, the Board finds that, in the 
circumstances of this case, any additional development or 
notification would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements in the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the claimant); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only 
result in unnecessarily imposing additional burdens on VA 
with no benefit flowing to the claimant are to be avoided); 
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there 
is extensive factual development in a case, reflected both in 
the record on appeal and the Board's decision, which 
indicates no reasonable possibility that any further 
assistance would aid the appellant in substantiating his 
claim, this Court has concluded that the VCAA does not 
apply).  

Under the VCAA, a medical examination or medical opinion is 
deemed to be necessary if the record does not contain 
sufficient competent medical evidence to decide the claim, 
but includes competent lay or medical evidence of a current 
diagnosed disability or persistent or recurrent symptoms of 
disability, establishes that the veteran suffered an event, 
injury, or disease in service, or has a disease or symptoms 
of a disease manifest during an applicable presumptive 
period, and indicates the claimed disability or symptoms may 
be associated with the established event, injury, or disease.  
See 38 C.F.R 3.159(c)(4).  A medical opinion is not required 
in this case, because the appellant has not produced 
competent evidence that the cause of the veteran's death is 
related to service or is due to service-connected disability.  
Although she did present information from a doctor regarding 
the possibility of the effect of the service-connected 
disability on death, as will be explained in the body of this 
decision, the opinion is not competent because it is based on 
speculation.  

Thus, the Board finds that the duty to assist and duty to 
notify provisions of the VCAA have been fulfilled.  No 
additional assistance or notification to the appellant is 
required based on the facts of the instant case.

Law and Regulations

In order 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 (West 
2002); 38 C.F.R. § 3.312(a) (2007).  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).  In order to be a contributory cause of death, it 
must be shown that there were "debilitating effects" due to a 
service-connected disability that made the veteran 
"materially less capable" of resisting the effects of the 
fatal disease or that a service-connected disability had 
"material influence in accelerating death," thereby 
contributing substantially or materially to the cause of 
death.  See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 
C.F.R. § 3.312(c)(1).

Service connection may be granted for a disability resulting 
from personal injury suffered or disease contracted in line 
of duty or for aggravation of preexisting injury suffered or 
disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. § 3.303 (2007).

Where a veteran served 90 days or more of continuous, active 
military service during a period of war and certain chronic 
diseases become manifest to a degree of 10 percent within one 
year from date of termination of service, such disease shall 
be presumed to have been incurred in service even though 
there is no evidence of such disease during the period of 
service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 
C.F.R. §§ 3.307, 3.309 (2007).

The U.S. Court of Appeals for the Federal Circuit (Federal 
Circuit) has also held that when a claimed disorder is not 
included as a presumptive disorder direct service connection 
may nevertheless be established by evidence demonstrating 
that the disease was in fact "incurred" during the service.  
See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Court has held that "where the determinative issue 
involves medical causation or a medical diagnosis, competent 
medical evidence is required."  Grottveit v. Brown, 5 Vet. 
App. 91, 93 (1993).  The Federal Circuit has recognized the 
Board's "authority to discount the weight and probity of 
evidence in light of its own inherent characteristics and its 
relationship to other items of evidence."  Madden v. Gober, 
125 F.3d 1477, 1481 (Fed. Cir. 1997).

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; 
however, the reasonable doubt rule is not a means for 
reconciling actual conflict or a contradiction in the 
evidence.  38 C.F.R. § 3.102.



Factual Background and Analysis

In this case, the appellant contends that the veteran's death 
in November 2004 as a result of sudden cardiac death was 
related to his service-connected aphonia and left laryngeal 
nerve paralysis.  She asserts that had he not had difficulty 
with his voice, she would have heard him calling for help 
when he presumably fell and had his heart attack.  She feels 
he would not have died had it not been for his voice 
impairment.  The Board finds that the preponderance of the 
evidence is against her claim, and it must be denied.  

The veteran sustained a gunshot wound to the neck in World 
War II service.  He underwent repair of the laryngeal nerve 
and vocal cords in service.  Service connection was granted 
for aphonia and laryngeal nerve paralysis in January 1948.  A 
50 percent rating has been in effect since that time.  

The veteran's condition was noted to produce hoarseness in 
1948.  In a 1958 treatment record, his voice was hoarse and 
weak, but the condition was considered static.  

Records from Louis M. Green, M.D., dated in December 1996 
show no complaints related to the veteran's aphonia and 
laryngeal paralysis.  He was noted to have had a right 
adrenalectomy in 1975 for a non-functioning tumor; a right 
colectomy for adenocarcinoma in 1987; prostate cancer in 
1991; and cerebrovascular accident in 1994 was noted.  The 
physician related that the veteran had longstanding 
hypertension, longstanding obesity, and had non-insulin 
dependent diabetes mellitus.  

Dr. Green's records January to July 2004 note the veteran was 
treated for large left parietal cerebrovascular accident in 
1994, with resulting right hemiparesis, with full recovery 
over time.  He had another acute stroke in November 2003.  It 
was noted he had a substantial TIA (trans ischemic attack) in 
July 2004.  

VA treatment records dated from May to September 2004 show he 
was treated with speech therapy following the stroke due to 
expressive aphasia secondary to the two strokes.  

In a written addition to his office notes, Dr. Green 
indicated on the date of the veteran's death in November 2004 
that the veteran had shortness of breath overnight.  He awoke 
at 5:00 am with shortness of breath, nausea and vomiting.  He 
arrested at home while getting into the car.  The paramedic 
at the emergency room could not resuscitate him, he could not 
be revived and was pronounced dead.  

The death certificate showed the veteran died in November 
2004 as a result of sudden cardiac death, the approximate 
interval between onset and death was less than 24 hours, due 
to or as a consequence of hypertension, cerebrovascular 
disease and diabetes of longstanding nature.  World War II 
gunshot wound to the neck was noted as an other significant 
condition contributing to death but not related to cause of 
death.  

In a January 2005 statement, appellant set forth her 
argument.  She stated that she found her husband on the 
bathroom floor at 5:00 am the morning he died.  She stated he 
was unable to yell out when he had his heart attack because 
of the service-connected aphonia.  She stated she was not 
sure how long her husband was alive, in a helpless state, 
unable to summon help.  She also urged that the death 
certificate citing the World War II wounds as significant 
supported her claim.  

The appellant submitted a statement from her brother and a 
long-time friend of the veteran in support of the claim.  
Both men attested to the veteran's high character and 
integrity.  They opined that the appellant's account of the 
events surrounding the veteran's heart attack was consistent 
with what they knew about the veteran's limited voice due to 
his service-connected injury.  Her brother felt that it was 
feasible that if the veteran could have projected his voice, 
the appellant could have heard him, helped him, and called 
911 so that he could have received medical care sooner.  

In a November 2005 statement, a VA attending physician noted 
that he met with the appellant to discuss her case to get 
benefits for her husband's death.  The physician noted the 
veteran's chronic hoarseness due to service-connected 
laryngeal nerve injury.  Given the events the appellant 
related to him, the physician stated he found it quite 
possible that the chronic hoarseness and resulting inability 
to get help from his wife (she told the physician she was in 
the other room) contributed to his death by delaying his 
receiving emergency medical care.  

Based upon review of all the evidence, the Board finds the 
persuasive evidence of record demonstrates a disease or 
injury which caused or contributed to the veteran's death was 
not incurred in or aggravated by service.  Clearly, there is 
no evidence of the cardiac disease, the immediate cause of 
death, in service.  The Board also finds the appellant is not 
entitled to service connection for the cause of the veteran's 
death on a presumptive basis under 38 C.F.R. § 3.309, as 
there is no evidence of the cardiovascular disease which 
caused his death within the veteran's first post-service 
year.  

As to the issue of whether the service-connected aphonia 
contributed to the veteran's death, the Board finds the 
preponderance of the evidence is against such a finding.  The 
appellant's assertion that she could not hear the veteran 
calling out to her is mere speculation.  She avers that she 
did not hear him, and could not speculate as to how long he 
was on the floor.  This is contrary to the handwritten report 
of Dr. Green, written on the date of the veteran's death 
noting the veteran awoke at 5:00 am with shortness of breath, 
nausea and vomiting, and arrested while getting into the car.  
There is no indication in the doctor's note that the 
appellant found the veteran in a helpless state, and the 
report is specific that the veteran arose at 5:00 am, the 
precise time that the appellant claims to have found him.  
The Board assumes that Dr. Green obtained his information 
from the appellant, as no one but the appellant would have 
had knowledge of the kinds of details that were related in 
Dr. Green's note.  The VA physician's opinion based on her 
speculations as to the effect that she could not hear the 
veteran are also speculative and thus not competent.  The 
Court has long held that service connection may not be 
granted based on a speculative medical opinion.  See Stegman 
v. Derwinski, 3 Vet. App. 228 (1992) (held that evidence 
favorable to the veteran's claim that did little more than 
suggest a possibility that his illnesses might have been 
caused by service radiation exposure was insufficient to 
establish service connection).  The November 2005 opinion was 
provided in connection with a report provided by the 
appellant with the presumption that the veteran called out 
and in fact the appellant could not hear him.  

Thus, although the Board is sympathetic to the appellant, it 
finds no competent evidence to support her assertion.  

Inasmuch as the appellant and her brother and friend urge in 
written statements that the veteran's death was due in part 
to his service-connected aphonia, neither she nor any other 
of the laymen are qualified to express an opinion regarding 
any medical causation of the veteran's conditions which led 
to the his death.  It is the province of trained health care 
professionals to enter conclusions which require medical 
expertise, such as opinions as to diagnosis and causation, 
and the lay opinions cannot be accepted as competent evidence 
to the extent that they purport to establish such medical 
causation.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 
(1992).

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  It is a 
substantial doubt and one within the range of probability as 
distinguished from pure speculation or remote possibility.  
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. 
Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance 
of the evidence is against this claim.


ORDER

Service connection for the cause of the veteran's death is 
denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs