Citation Nr: 0812850	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  04-09 007	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


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

T. Adams, Associate Counsel




INTRODUCTION

The veteran served on active duty from January 1945 to 
November 1946, and from October 1947 to December 1949.

This case is before the Board of Veterans' Appeals (Board) on 
appeal from a March 2002 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Montgomery, 
Alabama, which denied the benefits sought on appeal.


FINDINGS OF FACT

1.  Many years after service, the veteran developed pneumonia 
from which he died in January 2002.  This condition was not 
caused by any incident of service.

2.  At the time of the veteran's death, service connection 
was not established for any disability.

3.  The evidence does not establish that a service-connected 
disability caused or contributed materially or substantially 
to the veteran's death, or that the cause of death is 
otherwise related to service.


CONCLUSION OF LAW

Service connection for the cause of the veteran's death is 
not warranted.  38 U.S.C.A. §§ 1310, 5102, 5103, 5103A & 5107 
(West Supp. 2007); 38 C.F.R. § 3.312 (2007).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant and any 
representative of any information, medical evidence, or lay 
evidence not previously provided to VA that is necessary to 
substantiate the claim.  This notice requires VA to indicate 
which portion of that information and evidence is to be 
provided by the claimant and which portion VA will attempt to 
obtain on the claimant's behalf.  See 38 U.S.C.A. §§ 5103, 
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 
(2007).  The notice must:  (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence 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 claim, or something to the effect that 
the claimant should "give us everything you've got 
pertaining to your claim(s)."  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).

In addition, the notice requirements apply to all five 
elements of a service-connection claim, including:  (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).  Further, this notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Notice errors are presumed prejudicial unless VA shows that 
the error did not affect the essential fairness of the 
adjudication.  To overcome the burden of prejudicial error, 
VA must show (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 v. Nicholson, 487 F.3d 
881 (2007).
In August 2003, after the initial adjudication of the claim, 
the appellant was notified of the evidence not of record that 
was necessary to substantiate the claim.  She was told that 
she needed to provide the names of persons, agency, or 
company who had additional records to help decide her claim.  
She was informed that VA would attempt to obtain review her 
claim and determine what additional information was needed to 
process her claim, schedule a VA examination if appropriate, 
obtain VA medical records, obtain service records, and obtain 
private treatment reports as indicated.

It was also requested that she provide evidence in her 
possession that pertained to the claim.  In May 2006, the 
appellant submitted additional medical records accompanied by 
a waiver of RO consideration.  There is no allegation from 
the appellant that she has any evidence in her possession 
that is needed for a full and fair adjudication of this 
claim.

While the appellant was given notice of what type of 
information and evidence she needed to establish a disability 
rating and an effective date in August 2006, disability 
ratings are not assigned for cause of death claims.  
Therefore, any questions regarding the rating element of an 
increased rating claim are rendered moot.

Next, the statutes and regulations require that VA make 
reasonable efforts to assist the claimant in obtaining 
evidence necessary to substantiate a claim.  VA's duty to 
assist includes (1) obtaining records not in the custody of a 
federal department or agency; (2) obtaining records in the 
custody of a federal department or agency; (3) obtaining 
service medical records or other records relevant to active 
duty and VA or VA-authorized medical records; and, (4) 
providing medical examinations or obtaining medical opinions 
if necessary to decide the claim.  38 C.F.R. § 3.159(c).

VA has a duty to obtain a medical examination if the evidence 
establishes (1) a current disability or persistent or 
recurrent symptoms of a disability, (2) an in-service event, 
injury, or disease, (3) current disability may be associated 
with the in-service event, and (4) there is insufficient 
evidence to make a decision on the claim. McClendon v. 
Nicholson, 20 Vet. App. 79 (2006).

In this case, the veteran's service medical records and all 
identified and authorized post-service medical records 
relevant to the issue on appeal have been requested or 
obtained.  The Board finds that VA is not obligated to 
provide a medical opinion in this case because the evidence 
does not establish that the veteran suffered an event, 
injury, or disease in service.  38 C.F.R. § 3.159(c)(4).  
Therefore, the available records and medical evidence have 
been obtained in order to make an adequate determination as 
to this claim.

In sum, the Board finds the duty to assist and duty to notify 
provisions have been fulfilled and no further action is 
necessary under those provisions.

A claimant with active service may be granted service 
connection for a disease or disability either incurred in or 
aggravated by active military service.  38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. §§ 3.303, 3.304.

Service connection may be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Service connection for the cause of a veteran's death may be 
granted if a disability incurred in or aggravated by service 
was either the principal, or a contributory cause of death.  
38 C.F.R. § 3.12(a) (2007).  For a service-connected 
disability to be the principal cause of death, it must singly 
or with some other condition be the immediate or underlying 
cause, or be etiologically related.  38 C.F.R. § 3.12(b) 
(2007).  For a service-connected disability to constitute a 
contributory cause, it must contribute substantially or 
materially.  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) (2007).

The veteran died in January 2002.  The certificate of death 
provides that the immediate cause of death was pneumonia due 
to or as the result of chronic obstructive pulmonary disease 
(COPD), dementia, and chronic interstitial ling disease.

The record before the Board contains service medical records 
and post-service medical records, which will be addressed as 
pertinent.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a 
discussion of all evidence by the Board is not required when 
the Board has supported its decision with thorough reasons 
and bases regarding the relevant evidence).

Based on a thorough review of the record, the Board finds 
that the preponderance of the evidence is against the 
appellant's claim for service connection for the veteran's 
cause of death.

The appellant contends that events which took place during 
the veteran's service either directly caused or materially 
contributed to his death.  Specifically, she contends that 
her spouse's death was due to a respiratory disability 
secondary to exposure to asbestos.  However, in a July 1997 
decision the Board denied the veteran's claim for service 
connection for a pulmonary disability as a residual of 
asbestos exposure finding that there was no competent medical 
evidence that any pulmonary disorder was due to or the result 
of his service, including exposure to asbestos.

The veteran's service medical records, including reports of 
an October 1947 entrance examination and November 1949 
separation examination, are void of findings, complaints, 
symptoms, or diagnoses of a respiratory disability.
Private medical records include an August 1992 report which 
states that the veteran underwent a black lung examination 
and chest x-ray which showed a possible abnormality.  In 
October 1992, the veteran was admitted to the hospital for 
resection of a lung lesion which subsequently showed a 
carcinoma, fibrotic granulomas with anthrosilicotic pigment, 
and scarring.  The physician opined that he was a possible 
candidate for black lung disease.

A June 1994 private medical report shows that the veteran 
then complained of worsening breathing problems that caused 
dyspnea.  It was noted that his occupational history included 
work in the mines from 1970 to 1975 where he had performed a 
number of jobs, mostly in the shaft, where he was exposed to 
a lot of dust.  During that time, he wore his respirator when 
working in the mines.  Prior to work in the mines, he worked 
in a fabric plant making felt where he was exposed to a lot 
of cotton dust.  He reported that he smoked one and one-half 
pack of cigarettes per day for approximately fifty-two years.  
An examination of the lungs revealed hyperinflation with 
decreased breath sounds diffusely, without rales or wheezes.  
Findings were consistent with mild to moderate obstruction 
with superimposed restriction consistent with his previous 
lobectomies.  The assessment was that he suffered from 
moderate COPD with a history of bronchogenic carcinoma, 
status post resection.  The physician opined that he did not 
have black lung disease and that his problems were secondary 
to smoking.  The physician was adamant that he stop smoking 
and that smoking was his "major problem."

The veteran underwent a VA non-tuberculosis diseases and 
injuries examination in July 1995.  He then presented with 
shortness of breath and some right-sided chest pain, but 
hardly any palpitations.  He also had a chronic cough.  
Examination of the lungs revealed wheezing all over with some 
rales.  He was diagnosed with COPD, silicosis versus 
asbestosis, status post lobectomy of the right middle lobe, 
and generalized arteriosclerosis.


Private medical records dated in January 1999 show diagnoses 
of severe COPD, chronic respiratory insufficiency-oxygen 
replacement, emphysema, and a history of bronchogenic 
carcinoma.

Private medical records dated in April 2001 show impressions 
of severe COPD, pulmonary cachexia, ongoing tobacco abuse, 
and respiratory insufficiency.  On examination, the veteran 
had shortness of breath, wheezing, and coughing of blood.  
The overall impression was that he had severe obstructive 
lung disease.  Tobacco cessation was recommended.  In May 
2001, a pulmonary examination was positive for a productive 
cough.  There was a marked diminished airflow bilaterally and 
a prolonged expiratory phase.  The impression was hypotension 
resolved with treatment of presumed adrenal insufficiency, 
and severe COPD with slightly improved pulmonary cachexia 
without evidence of an acute infectious exacerbation.  
Tobacco use was unfortunately ongoing.  He was again 
counseled on cessation.  In August 2001, he presented with 
complaints of shortness of breath with wheezing on exertion.  
He had a primarily non-productive cough.  The overall 
impression was that he was doing relatively well from a 
pulmonary standpoint.  He had underlying severe obstructive 
lung disease and chronic respiratory insufficiency.  Tobacco 
cessation was again encouraged, but the physician felt that 
it was doubtful for him to gain complete abstinence.  In 
November 2001, the veteran presented with complaints of 
increased shortness of breath.  A pulmonary examination was 
positive for cough, production of white sputum, shortness of 
breath, and wheezing.  The overall impression was that he was 
experiencing acute atypical bronchitic exacerbation of COPD.

In December 2001, the veteran presented to a hospital 
emergency room with increasing shortness of breath and was 
diagnosed with pneumonia.  He was given antibiotics, 
intubated, and placed on a ventilator.  He was placed in the 
intensive care unit.  The overall impression was that he had 
respiratory failure with what appeared to be left lung 
pneumonia, leukocytosis, and significant hypoxemia.  The 
veteran passed away in January 2002 from pneumonia due to or 
as a consequence of COPD, dementia, and chronic interstitial 
lung disease.  None of the medical evidence of record relates 
that the veteran's pneumonia, COPD, or any other pulmonary 
disability began in service, or were in any way linked to his 
service or to any disease or injury incurred in or aggravated 
therein.  In addition, the competent medical evidence does 
not show that the veteran died from any asbestos-related 
disease.

The veteran's post-service medical records are negative for 
any diagnosis of pneumonia, COPD, or any other respiratory 
disability until many years after separation from active 
service.  A significant lapse in time between service and 
post-service medical treatment may be considered as part of 
the analysis of a service connection claim.  Maxson v. Gober, 
230 F.3d 1330 (Fed. Cir. 2000).  In this case, the medical 
evidence of record does not show that the pneumonia that 
caused the veteran's death was incurred in or aggravated by 
service.  The evidence of record does not show that COPD, 
which was also listed as a cause of death on the death 
certificate, was incurred in or aggravated by service.  
Finally, there is no competent medical opinion of record 
relating the veteran's cause of death to exposure to asbestos 
or any diagnosis of an asbestos-related disease.

The Board has considered the appellant's assertions that her 
spouse's death was a result of his service, including 
exposure to asbestos.  Lay statements are considered to be 
competent evidence when describing the features or symptoms 
of an injury or illness.  Falzone v. Brown, 8 Vet. App. 398 
(1995).  As a layperson, however, she is not competent to 
provide an opinion requiring medical knowledge, such as a 
diagnosis, or an opinion relating to medical causation and 
etiology that requires a clinical examination by a medical 
professional.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  
The Board acknowledges that a claimant is competent to give 
evidence about what he experienced.  Layno v. Brown, 6 Vet. 
App. 465 (1994).  Competency, however, must be distinguished 
from weight and credibility, which are factual determinations 
going to the probative value of the evidence.  Rucker v. 
Brown, 10 Vet. App. 67 (1997).  As a result, her assertions 
do not constitute competent medical evidence that her 
spouse's death was related to his service.

The medical evidence of record does not show that the 
pneumonia that caused the veteran's death, or the COPD which 
was also listed as a cause of death on the death certificate, 
was incurred in or aggravated by the veteran's service, or 
that the veteran was diagnosed with any asbestos-related 
disease.  In the absence of competent medical evidence 
relating the veteran's causes of death to his service, the 
claim must be denied.

Accordingly, the Board finds that the preponderance of 
evidence is against the claim for service connection for the 
cause of the veteran's death.  Therefore, service connection 
for the cause of the veteran's death is denied.  38 U.S.C.A. 
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

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



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs