Citation Nr: 0812249 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-04 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The appellant is the widow of a veteran whose active military service extended from June 1942 to August 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the appellant requested a Travel Board hearing in her substantive appeal. The hearing was scheduled for April 2006. The appellant cancelled the hearing in March 2006, and has not attempted to reschedule the hearing. Thus, the Board finds that the veteran's request for a hearing is considered to be withdrawn. 38 C.F.R. § 20.704(d) (2007). FINDINGS OF FACT 1. The veteran died in April 1982, and the death certificate lists the cause of death as massive myocardial infarction. The death certificate also lists peripheral neuritis as a significant condition contributing to death. 2. At the time of the veteran's death, service connection was in effect for residuals of meningitis-neurasthenia and weakness of the right side, which was rated as 20 percent disabling, effective September 24, 1947. 3. The medical evidence shows that the veteran died due to a massive myocardial infarction that was not related to his sole service-connected disability, residuals of meningitis- neurasthenia and weakness of the right side, or to any disease or injury of service origin. CONCLUSION OF LAW A disease or injury incurred in service or of service origin did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection for the Cause of Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Some chronic diseases, such as organic diseases of the nervous system and cardiovascular-renal disease, including hypertension, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a),3.309(a). A determination of service connection requires a finding of the existence of a current disability and a relationship between that disability and injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Hickson v. West, 2 Vet. App. 247, 253 (1999). In order to establish service connection for the cause of the veteran's death, the evidence must show that a service connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. Id. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or 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). 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). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). In this case, the veteran died in April 1982. The death certificate lists the cause of death as massive myocardial infarction. The death certificate also lists peripheral neuritis as a significant condition contributing to death. At the time of his death the veteran was service-connected for residuals of meningitis-neurasthenia and weakness of the right side. The condition was evaluated as 20 percent disabling, effective September 24, 1947. The appellant contends that the veteran's massive myocardial infarction was contributed to by the veteran's service-connected residuals of meningitis. The Board notes that "[n]euritis is defined as inflammation of a nerve, a condition attended by pain and tenderness over the nerves, anesthesia and paresthesias, paralysis, wasting, and disappearance of the reflexes." Barclay v. Brown, 4 Vet. App. 161, 163 (1993). The Board notes that "[n]eurasthenia is defined as an emotional and psychic disorder that is characterized especially by easy fatigability and often by lack of motivation, feelings of inadequacy, and psychosomatic symptoms." Case v. Derwinski, 2 Vet. App. 592, 593 (1992). The Board also notes that "[n]europathy is an abnormal and usually degenerative state of the nervous system or nerves." Nix v. Brown, 4 Vet. App. 462, 466 (1993). The Board will first address whether a service-connected disability was a principal or contributory cause of death. In December 2004 the RO referred this case for a medical expert opinion. In an opinion, dated in December 2004 and signed by a VA physician, after reviewing all of the available medical records, the VA physician stated that "[i]n the absence of other documentation of the veteran's heart disease and hypertension, given the fact that this was not manifest until at least the 1980s, I cannot state that the veteran's demise from the massive myocardial infarction was in any way related to his meningitis-neurasthenia with weakness of the right arm." The physician also rendered the opinion that he "cannot say that the service connected conditions contributed to or materially hastened his demise." The VA physician indicated that he reviewed all of the veteran's available service medical records and the private medical records submitted by the appellant. After considering all the evidence of record, the Board finds that the weight of the evidence is against a finding that a service-connected disease or disability (residuals of meningitis-neurasthenia with weakness of the right arm) was the principal or contributory cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In adjudicating the appellant's claim, the Board must also consider whether the disabilities that caused the veteran's death may be service-connected, namely cardiovascular disease and peripheral neuritis. Under the laws administered by VA, service connection may be granted 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, 3.304. Cardiovascular-renal disease, including hypertension, and organic diseases of the nervous system may be presumed to have been incurred during active military service if they become manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The veteran's service medical records do not reveal any complaint, diagnosis, or treatment for any cardiovascular- renal disease or peripheral neuritis. Post-service records reveal that the veteran was examined by VA in December 1943, September 1947, and October 1951. The reports of these examinations do not reveal any cardiovascular-renal disease or peripheral neuritis. Dr. R.C., a private physician, in a letter dated in August 1951, indicated that he had examined the veteran. Dr. R.C. noted that the veteran's heart sounds were regular and normal and that his chest was essentially normal. Dr. R.C. did not note any peripheral neuritis. In September 1971, the veteran was afforded a VA Compensation and Pension (C&P) examination. The veteran reported that he had a history of a "light heart attack" approximately 10 years prior and that he had a heart murmur since that time. Upon examination the veteran's heart revealed a normal sinus rhythm with a grade I to II systolic murmur heard over the apical area. The examiner indicated that the veteran's electrocardiogram was normal. The examiner noted that otherwise the veteran's heart was within normal limits. The veteran was diagnosed with atherosclerotic coronary artery disease based upon his reported history. February 1982 and March 1982 inpatient treatment notes from North Carolina Baptist Hospital in Winston-Salem, North Carolina, reported that the veteran had a history of hypertension. March 1982 treatment notes from North Carolina Baptist Hospital in Winston-Salem, North Carolina, diagnosed the veteran with peripheral neuropathy. As indicated above, in December 2004, the claims folder was reviewed by a VA physician. The physician noted that there was no evidence of hypertension or problems with the veteran's heart until 1982. The physician reported that the veteran's service medical records did not reveal any heart or hypertensive problems. The physician stated that the veteran's heart disease and hypertension did not manifest until at least the 1980's. The appellant, in her informal hearing presentation, raises the argument that the veteran's demise may have been caused or hastened by post-traumatic stress disorder (PTSD) or chronic neurotic reaction secondary to his meningitis manifested by an hysterical weakness suggested by the actual weakness of the illness itself. The Board notes that there is no evidence associated with the file that the veteran had PTSD. The VA examiner, in September 1947, diagnosed the veteran with chronic neurotic reaction secondary to his meningitis manifested by an hysterical weakness suggested by the actual weakness of the illness itself. However, there is no evidence in the file to suggest that these psychiatric conditions contributed to the veteran's death nor is this indicated on the veteran's death certificate as a direct cause or significant contributing condition to the veteran's death. The preponderance of the evidence is against the claim for entitlement to service connection for the cause of the veteran's death. The veteran's service-connected residuals of meningitis-neurasthenia with weakness of the right arm are not shown by any competent medical evidence of record to have been a principal or contributory cause of the veteran's death. There is no evidence that the veteran had any cardiovascular-renal disease, to include hypertension, or peripheral neuritis during service or during the first year after service. While the veteran's Certificate of Disability for Discharge and Clinical Record Brief upon separation from service indicated that the veteran was in poor health and diagnosed the veteran with psychoneurosis, hypochondriacal type, moderate and neurasthenia, post meningitis, mild, there is no report of any cardiovascular-renal disease or peripheral neuropathy. The medical evidence of record reveals that the veteran was diagnosed with hypertension and peripheral neuropathy decades after service. There is simply no medical evidence which in any way links the veteran hypertension or peripheral neuropathy to his military service. Accordingly, service connection for the cause of the veteran's death must be denied. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 notice from VA 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duties to notify indicated above were satisfied by way of a letter sent to the appellant in December 2002 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. While the December 2002 letter did not explicitly ask that the appellant provide "any evidence in [her] possession that pertains" to her claim, as per § 3.159(b)(1), she was advised of the types of evidence that could substantiate her claim and to ensure that VA receive any evidence that would support her claim. Logically, this would include any evidence in her possession. In any event, the appellant was explicitly asked to provide any evidence in her possession in a letter dated in May 2004 prior to readjudication of the claim in the January 2005 Statement of the Case, curing the defect. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, in the context of a claim for Dependency and Indemnity Compensation (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, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. Here, the VCAA duty to notify has not been satisfied with respect to a statement of the conditions, if any, for which a veteran was service connected at the time of his death. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake at 46. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the appellant had actual knowledge of the condition for which the veteran was service connected at the time of his death. The appellant in her initial claim, dated in November 2002, and in subsequent statements indicated that the veteran was service connected for residuals of meningitis. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's private treatment records dated from February 1982 to April 1984. The RO has made recorded attempts to obtain identified treatment records from Aegis Family Health and upon being notified that Aegis Family Health did not have any treatment records of the veteran, notified the appellant and asked her to submit any records she may have had. The RO has made recorded attempts to obtain identified treatment records from the VA Medical Center in Salisbury and VA Outpatient Clinic in Winston-Salem and made a formal finding in October 2005 that these records were unavailable for review. The veteran's medical record was reviewed and a VA medical opinion was provided in December 2004. Significantly, neither the appellant nor her representative has identified, and 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 or recorded efforts have been undertaken to obtain. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs