Citation Nr: 0812418 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-08 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to August 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2003, the appellant filed a claim for burial benefits for the veteran, which was granted in December 2003 in the amount allowable for a veteran whose death was not related to military service. However, in October 2003, the appellant filed a second claim for burial benefits, indicating that the veteran's death was related to military service. Thus, a determination as to whether the cause of the veteran's death was service-connected must be made prior to any further VA action on the claim for burial benefits. FINDINGS OF FACT 1. VA notified the appellant of the evidence needed to substantiate the claim, explained to her who was responsible for submitting such evidence, and developed all available evidence necessary for an equitable disposition of the claim. 2. The veteran died in July 2003; the immediate cause of death was hypertensive and arteriosclerotic heart disease with alcoholic liver disease a contributing condition; none of these disorders were present in service or related to service or service connected disability. 3. At the time of the veteran's death, service connection was in effect for psychoneurosis, evaluated as 30 percent disabling, effective January 10, 1975; service connected disability did not contribute substantially or materially to the cause of the veteran's death, nor hasten death. CONCLUSION OF LAW Hypertensive and arteriosclerotic heart disease with alcoholic liver disease were not incurred in or aggravated by active service, and were not related to service connected disability; a disability incurred in or aggravated by service did not cause or contribute to cause the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). The Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. In this case, the appellant was provided with a VCAA notification letter in February 2004, prior to the initial unfavorable AOJ decision issued in July 2004. Additional VCAA letters were sent in March 2005, September 2005, October 2005, and December 2005. Under Pelegrini, for a VCAA notice to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform a claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims. Pelegrini, 18 Vet. App. at 120-121. In reviewing the appellant's claim of entitlement to service connection, the Board observes that the VCAA notices issued in February 2004 and September 2005 informed her of how VA would assist her in developing the claim and her and VA's obligations in providing evidence for consideration. The February 2004 letter also advised her of the type of evidence necessary to establish service connection for the cause of the veteran's death. The September 2005 and October 2005 letters discussed the evidence necessary to show entitlement to Dependency and Indemnity Compensation (DIC) benefits and requested that the appellant submit any evidence in her possession to VA. The letters dated in March 2005 and December 2005 were specific to particular records requested by VA on the appellant's behalf. Failure to provide pre-adjudicative notice of any of the four elements is presumed to create prejudicial error. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (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; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The February 2004 notice informed her that additional information or evidence was needed to support her claim and asked her to send the information or evidence to VA, and provided examples of the types of evidence, both medical and lay, that could be submitted. Therefore, the Board finds that a reasonable person could be expected to understand that she should submit any relevant evidence during the development of the claim. Further, subsequent to the September 2005 notice, the appellant's claim was readjudicated and a supplemental statement of the case issued in March 2006, which cures any deficiency in timing of notice on any of the elements of VCAA. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (citing Mayfield v. Nicholson, 444 F.3d at 1328). For these reasons, the Board concludes that the failure to provide a fully VCAA compliant notice prior to the initial adjudication was harmless, and that to decide the appeal would not be prejudicial to the appellant. Also pertinent to VA notice requirements is the Court's decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present case, an August 2006 letter advised the appellant of the evidence necessary to establish entitlement to a disability rating and an effective date for the disability on appeal. Despite the inadequate timing of the notice provided to the appellant on these two elements, the Board finds no prejudice to her 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 veteran has been prejudiced thereby). When the issue is service connection for cause of death, disability ratings are not assigned; and, as the Board concludes herein that the preponderance of the evidence is against the appellant's claim, any question as to the appropriate effective date to be assigned is rendered moot. Finally, the Board notes that, while the appeal was pending, the Court issued a decision with regard to the content of VCAA notices relevant to DIC claims. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp¸ the Court held that a notice with regard to a claim for DIC benefits must include (1) a statement of the conditions (if any) for which the 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 disability and (3) a explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service connected. Additionally, if the claimant raises a specific issue regarding a particular element of the claim, the notice must inform the claimant of how to substantiate the assertion, taking into account the evidence submitted in connection with the application. In the present case, the September 2005 letter informed the appellant of the evidence necessary to support a claim for DIC benefits, but none of the VA communications informed her of the disabilities for which the veteran was service-connected or of the evidence necessary to support a claim for benefits based on a nonservice-connected disorder. However, the Board observes that the appellant has specifically argued that the veteran's death was a result of his service-connected psychoneurosis, thereby revealing that she was aware of the disabilities of the veteran that were service-connected. Further, the Board's determination herein that service connection for the cause of the veteran's death is not warranted has rendered moot questions regarding any other deficiencies of the notice under Hupp. All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished all due process concerns have been satisfied. See Bernard; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, all content requirements of a VCAA notice have been fully satisfied in this case. Therefore, the Board finds that delaying appellate review by providing additional VCAA letters to the appellant would be of no benefit. VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the appellant's claim. The veteran's service medical records and VA treatment records were reviewed by both the AOJ and the Board in connection with adjudication of the appellant's claim. Additionally, the medical opinions from private physician, Dr. S., dated in July 2005; independent expert, Dr. R., dated in February 2006; and a VA examiner, dated in March 2006, are of record. Efforts to obtain medical records from the VA facility in Saginaw from 1980 to 1990 and from the VA facility in Battle Creek from 1990 onward yielded negative results. The appellant has not identified any additional relevant records VA needs to obtain for an equitable disposition of the claim, and the Board finds that VA has satisfied its duty to assist the appellant in attempting to obtain available relevant records. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the claim without further development. Thus, the Board finds that additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of 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 veteran); 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 veteran are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case. Therefore, she will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis The appellant is seeking burial benefits based on the cause of the veteran's death being related to military service. At the time of the veteran's death, service connection was in effect for psychoneurosis, most recently assigned a 30 percent rating evaluation, effective January 1975. The appellant contends that the heart disease that caused the veteran's death was due to his service-connected psychoneurosis, either directly, or through the medication he was prescribed to treat it. Consequently, she argues that service connection for the cause of the veteran's death is warranted on a secondary basis. The Board notes that the appellant does not allege, nor does the record suggest, that the veteran's cardiovascular disease or liver disease were either directly or presumptively related to service. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) 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). 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; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). As reported on the veteran's death certificate, he died in July 2003 of hypertensive and arteriosclerotic heart disease with alcoholic liver disease contributing to death, but not resulting in the underlying cause of death. VA treatment records dated from June 1989 to September 1998 reveal diagnoses of depression, schizophrenia, and anxiety neuroses with some element of psychotic behavior. September 1998 is the most recent record showing treatment for a psychiatric disorder. Subsequent private treatment records report diagnoses of organic dementia and Alzheimer's disease. With regard to heart disease, records reveal that the veteran had diagnoses of hypertension and coronary artery disease and underwent coronary bypass surgery prior to September 1995. No treatment records reflect a relationship between the veteran's service-connected psychoneurosis and his heart disease or alcoholic liver disease. Further, there are conflicting medical opinions with regard to a relationship between the veteran's cardiovascular disease and his service-connected psychoneurosis. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In a July 2005 letter, Dr. S. indicates that it is his medical opinion that the veteran's service-connected mental disorder, i.e., post-traumatic mental disorder, contributed to his hypertension and arteriosclerotic heart disease. However, Dr. S. does not provide an underlying reason for this opinion. Without such rationale, the opinion carries no probative weight. In contrast, a February 2006 expert opinion by Dr. R. states that he had reviewed the veteran's claims file, and that according to the textbook, The Heart (10th Edition), HPA axis activity contributes to the development of cardiovascular disease and cardiac-related mortality and patients with PTSD have alterations of HPA axis activity. However, he indicated that whether patients with PTSD experience an increased relative risk of cardiovascular disease is not known. He, therefore, concluded that the veteran's psychoneurosis and any of the medications he took to control this disorder did not likely cause or materially contribute to his death (hypertension and/or cardiovascular disease). As Dr. R. reviewed the veteran's medical history as documented in the claims file, as well as researched a relationship between PTSD and cardiovascular disease, the Board finds that this opinion carries great probative weight. Additionally, a March 2006 VA opinion states that the veteran's cause of death of hypertension and arteriosclerotic heart disease was not the result of his psychoneurosis or medications for that disorder. In forming this opinion, the VA physician reviewed the claims file. After a review of the relevant medical evidence, the examiner concluded that it was likely the veteran's symptoms would meet the criteria for PTSD. He also noted that the veteran had an extensive history of alcohol use and that the main psychiatric issue toward the end of his life was severe dementia. The examiner observed that the veteran was not getting treatment for his anxiety or depression at the end of his life. He stated that he believed it to be less likely than not that the veteran's alcohol abuse was secondary to his service-connected psychoneurosis, and that it likely had a multifactorial etiology. Finally, he noted that the veteran was not receiving treatment for his service-connected psychoneurosis at the end of his life, that the major clinical issue at that time was dementia, and that there is no documentation in the claims file to support a link between the psychoneurosis and the cause of the veteran's death. As the VA examiner reviewed the claims file and cited several details from the medical evidence of record in support of his opinion, the Board also affords this opinion great probative weight. Thus, there is no competent and probative evidence relating the veteran's hypertensive and arteriosclerotic heart disease or alcoholic liver disease to his service-connected psychoneurosis or the medication the veteran was taking to treat it. Thus, the only evidence of record that the veteran's cause of death was related to his service-connected psychoneurosis is the appellant's own statements. Laypersons are competent to speak to symptomology when the symptoms are readily observable. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Absent competent and probative evidence of a nexus between the cause of the veteran's death and his service-connected psychoneurosis, service connection for cause of death is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death. Therefore, her claim must be denied. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs