Citation Nr: 0811928 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 02-08 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from May 1944 to March 1946. He died in March 2000. The appellant is the veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal for a June 2001 decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the appellant's claims of entitlement to service connection for the cause of the veteran's death and entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35. This case was remanded in October 2003 for further development. FINDINGS OF FACT 1. The veteran died in March 2000; his death certificate lists the immediate cause of death as due to or as a consequence of "CPR" (sic). A private emergency room record, dated the day of the veteran's death, includes a final impression of acute cardiopulmonary arrest. 2. During his lifetime service connection was established for tuberculosis, completely arrested, evaluated as noncompensable. 3. A service-connected disability did not contribute substantially or materially to the veteran's death or aid or lend assistance to the production of death. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute to the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2007). 2. The requirements for eligibility for dependents' educational benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3500, 3501, 3510 (West 2002 and Supp. 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; evidence of a nexus between service and death; and the effective date of any death benefits. The appellant must also be notified to submit all evidence in her possession, what specific evidence she is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in June 2004 and February 2005 correspondence, amongst other documents considered by the Board, generally fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish an effective date for the benefit sought on appeal. The claim was readjudicated in a March 2006 supplemental statement of the case. The failure to provide notice of the type of evidence necessary to establish an effective date for benefits sought on appeal is harmless because the preponderance of the evidence is against the appellant's claims, and any questions as to the appropriate effective date to be assigned are moot. The Board acknowledges that under 38 U.S.C.A. § 5103(a), full notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, any error was not prejudicial. The appellant has since been given full pertinent notice, and she has been afforded a meaningful opportunity to participate in the adjudication of her claims, to include the opportunity to present pertinent evidence and testimony. Thus any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Finally, VA has secured all available pertinent evidence and conducted all appropriate development. The service medical records are available, as well as private and medical records, and there is no pertinent available evidence which is not currently part of the claims file. Hence, VA has fulfilled its duty to assist the appellant in the prosecution of her claims. Laws and Regulations In order to establish service connection for the cause of the veteran's death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause 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). Service connection may be granted for a disorder incurred or aggravated during the veteran's active duty service. 38 U.S.C.A. § 1110 (West 2002). Service connection may also be granted for coronary artery disease if the disorder is compensably disabling within one year of the appellant's separation from active duty. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. Factual Background The appellant contends, in essence, that residuals of the veteran's service-connected tuberculosis caused irreversible lung damage and were ultimately responsible for his death. See VA Form 21-4138, received in July 2004. The veteran served during World War II. Service medical records show no treatment for either tuberculosis or any pulmonary-related disorder. Service medical records do not reveal any complaints, findings or diagnoses pertaining to coronary artery disease. Postservice private medical records include diagnoses of pulmonary tuberculosis in 1948. Service connection was granted in September 1950. A 100 percent disability rating was assigned. At the time of the veteran's death the disorder was rated as noncompensable. An April 1976 VA hospital summary notes that the veteran had pulmonary tuberculosis in the late 1940's. He was treated at that time with Pneumoperitoneum with good response. He was reported to have had no problems since that time. Pulmonary tuberculosis, inactive many years, was diagnosed. The report of a May 1997 VA pulmonary tuberculosis and tuberculosis diseases examination includes the following diagnoses: severe multi-vessel coronary artery disease; chronic dyspnea on exertion, normal pulmonary function findings; a history of moderately advanced pulmonary tuberculosis which had been quiescent since initial therapy in 1948, hypertension, and reduced diffusing capacity for carbon monoxide. In October 2000, the RO received the appellant's application for dependency and indemnity compensation. See VA Form 21- 534. In response to the appellant's application for benefits, the RO in October 2000 notified her that entitlement to VA death benefits required a demonstration that a disability of service origin resulted directly in the veteran's death. It indicated that the appellant should submit all available medical records pertaining to the veteran's treatment for conditions related to the cause of the veteran's death. In support of the appellant's claim a final hospital summery was submitted in May 2001. The summary indicates that the veteran was admitted into the emergency room of the Memorial Hospital of Martinsville and Henry County ( Memorial Hospital ) in March 2002. The veteran was admitted experiencing cardiopulmonary arrest. Life saving treatment, to include cardiopulmonary resuscitation, was unsuccessful and the veteran was pronounced dead. The final impression was acute cardiopulmonary arrest. The March 2000 death certificate lists the immediate cause of death as due to or as a consequence of "CPR" (sic). The claimant also submitted a June 2003 letter from Dr. Bhatt. Dr. Bhatt noted that the veteran had been treated for cardiovascular problems, to include atherosclerotic coronary artery disease and ischemic cardiomyopathy, systemic hypertension, peripheral vascular disease, and sick sinus syndrome status post permanent pacemaker implantation. The physician added that the veteran's co-morbid problems of pulmonary insufficiency "could possibly be the result of" a past history of tuberculosis and nicotine usage, which "probably" contributed to the veteran's disease. In June 2003, the appellant provided testimony before the undersigned in Washington , D.C. She testified that a private physician, Dr. Hammon, had informed her that the veteran's tuberculosis so weakened his lungs that he was never fully able to recover from heart surgery in the early 1990's. See page seven of hearing transcript. The Board notes that the appellant was invited as part of letters of June 2004 and February 2005, to obtain a written opinion from Dr. Hammon. She was also requested to seek such an opinion from Dr. Bhatt. Neither physician is shown to have supplied VA with a medical opinion concerning the cause of the veteran's death. The Board's remand of October 2003 ordered that medical opinions be sought from a VA cardiologist and pulmonologist. In January and March 2006, respectively, a VA cardiologist and a VA staff physician provided medical opinions regarding the veteran's cause of death. The examiners reviewed the evidence of record. The examiners were informed that service connection for pulmonary tuberculosis had been established for the veteran in 1948, and that he had a 0 percent rating at the time of his death in 2000. Four questions were posed to these physicians. They were: Whether it is at least as likely as not that the veteran's inactive tuberculosis caused or contributed substantially or materially to his death? The cardiologist and the physician answered the question, respectively, with "Unlikely" and "No." Whether his inactive tuberculosis caused or made worse his heart disease such as it led to the veteran's death? The cardiologist and the physician answered the question, respectively, with "Very Unlikely" and "No." Whether the lung problems caused by the service- connected tuberculosis still limited his ability to recover from heart surgery and/or heart disease that it hastened his death? The cardiologist and the physician answered the question, respectively, with "Very Unlikely" and "No." Whether the lung problems caused by his service- connected tuberculosis so limited his physician's ability to treat his heart disease that it hastened his death? The cardiologist and the physician answered the question, respectively, with "Very Unlikely" and "No." Analysis Service Connection for the Cause of the Veteran's Death On review of the evidence addressing the relationship between the veteran's service-connected disability and his death, the Board finds that it must assign greater evidentiary weight to the January and March 2006 VA opinions than those provided by the veteran's healthcare provider Dr. Bhatt. In this respect, while pulmonary tuberculosis was first demonstrated within three years of the veteran's service separation, it was completely arrested many years before the veteran's death. The Board also observes that while the veteran did suffer from cardiac-based disorders following his separation from service they were first diagnosed in the 1990's -- some 50 years following the veteran's service separation, and service connection was not in effect for any heart-related disorder. As noted, an opinion is of record supplied by Dr. Bhatt. Dr. Bhatt noted that the veteran had been treated for several cardiovascular problems. The physician added that the veteran's co-morbid problems of pulmonary insufficiency "could possibly be the result of" a past history of tuberculosis and nicotine usage, which "probably" contributed to the veteran's disease. Unfortunately, Dr. Bhatt offered no medical basis or rationale for the supplied opinions. The Board again here notes that at the time of the veteran's death a cardiac-related disorder had not been service connected. Further, there is no evidence that Dr. Bhatt based the opinion on all of the evidence of record. Finally, this opinion is shown to be speculative in nature and it did not cite to the medical authority that supported the opinions. In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the United States Court of Appeals for Veterans Claims held that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related to service, is too speculative to establish such relationship. In contrast to the opinions offered by Dr. Bhatt, the VA opinions rendered in January and March 2006 were provided after a review of the voluminous claims files. While Dr. Bhatt opined that the veteran's co-morbid problems of pulmonary insufficiency "could possibly be the result of" a past history of tuberculosis and nicotine usage, which "probably" contributed to the veteran's disease, the opinion is, as noted above, speculative at best. There is no doubt of the sincerity of the appellant's beliefs; however, the preponderance of the most probative medical evidence is against the contention that the veteran's death was in any way related to service. As the appellant is not trained in the field of medicine, she is not competent to offer an opinion regarding any medical causation leading to the veteran's death. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The evidence preponderates against the claim, and shows that the veteran's fatal acute cardiopulmonary arrest was not related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for the cause of the veteran's death must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to DEA benefits Chapter 35 of Title 38, United States Code extends VA educational program benefits to surviving spouses of veterans who died of service-connected disabilities and to the surviving spouse of a veteran who, when he died, had a service-connected total disability that was permanent in nature. See 38 U.S.C.A. §§ 3500, 3501(a)(1). As service connection for the cause of the veteran's death is not warranted, and as the veteran, when he died, did not have a service-connected total disability that was permanent in nature, the criteria for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have not been met. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to Dependency Educational Assistance under Chapter 35 of Title 38, United States Code is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs