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