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considered to be withdrawn. 38 C.F.R. § 20.704(d) (2007).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