Citation Nr: 0813431 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-03 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C.A., Chapter 35. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from August 1943 to March 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2003 by the Department of Veterans Affairs (VA) Nashville, Tennessee, Regional Office (RO). The claim currently on appeal was previously before the Board in April 2005 and was remanded for additional evidentiary development. The claim is now before the Board for final appellate consideration. FINDINGS OF FACT 1. The veteran died in November 2002 at the age of 81. The death certificate listed the immediate cause of death as lung cancer, and that the immediate cause of death was due to or a consequence of cerebrovascular accident and dementia. 2. The veteran was service connected at the time of his death for arthritis of the cervical spine, rated as 30 percent disabling. 3. After the veteran's death, he was granted service connection for arthritis of left shoulder at 20 percent, right shoulder at 20 percent, lumbar spine at 20 percent, left hip at 10 percent, left wrist at 10 percent, right wrist at 10 percent, left knee at 10 percent, right knee at 10 percent, fingers of the left hand at a noncompensable rating, fingers of the right hand at a noncomenpensable rating, and residuals of a right hip fracture with arthritic changes at 20 percent, and the appellant received accrued benefits. CONCLUSIONS OF LAW 1. The veteran's death was not caused by, or substantially or materially contributed to by, a disability or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). 2. The basic eligibility requirements for entitlement to DEA benefits under 38 U.S.C.A., Chapter 35 are not met. 38 U.S.C.A. §§ 3500, 3501, 3510 (West 2002); 38 C.F.R. § 3.807 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing Service Connection for Cause of Death Dependency and indemnity compensation (DIC) is available to a surviving spouse who can establish, among other things, that the veteran died from a service-connected disability. 38 U.S.C.A. §§ 1310, 1311. Service connection for the cause of the veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. 3.312. 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). On the other hand, 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 is a causal connection. 38 C.F.R. § 3.312(c). Service connection is warranted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases, such as malignant tumors, arteriosclerosis, 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. Certain other chronic diseases, such as tuberculosis, will be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within three years of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a),3.309(a). In addition, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Factual Background and Analysis In this case, the appellant contends that the veteran's service-connected disabilities caused his death. In particular, the appellant indicated that the veteran's arthritis prevented cardiovascular exercise which purportedly caused a cerebrovascular accident (CVA). The appellant also claimed that the veteran had "weakened lungs" which eventually led to lung cancer and ultimately, his death. At the time of his death, the veteran was service connected for arthritis of the cervical spine at 30 percent disabling. After the veteran's death, in June 2003, he was granted service connection for arthritis of the left shoulder at 20 percent, right shoulder at 20 percent, lumbar spine at 20 percent, left hip at 10 percent, left wrist at 10 percent, right wrist at 10 percent, left knee at 10 percent, right knee at 10 percent, fingers of the left hand at a noncompensable rating, fingers of the right hand at a noncompensable rating, and residuals of a right hip fracture with arthritic changes at 20 percent. The RO evaluated these conditions to be 90 percent disabling, effective July 27, 2001. The appellant was subsequently awarded accrued benefits based on the grant of service connection for these conditions. The Board has reviewed all of the evidence of record. The Board notes as a preliminary matter that the veteran's claims file is devoid of any evidence indicating in-service cardiovascular or respiratory problems. The veteran was afforded a clinical evaluation and physical examination in July 1943 at the time of induction. The clinical evaluation was essentially normal and no heart or lung problems were noted at that time. Likewise, the veteran was given a physical examination in August 1943 when he reported for active duty, and no heart or lung problems were noted. The veteran was also afforded flight status physical examinations in March and April 1944. The veteran's heart and lungs were normal at that time. The veteran underwent a clinical evaluation and physical examination in March 1946 prior to discharge from service. The physical examination was normal, and no cardiovascular or respiratory abnormalities were noted at that time. Chest x- rays were interpreted to be negative. The first pertinent post-service treatment record is dated March 1947. The veteran presented to T. Willis, M.D. for treatment of mild arthritic changes in the neck. Upon VA examination in June 1947, the veteran's cardiovascular and respiratory system were evaluated as normal. Blood pressure was 126/78. A VA treatment note dated April 1951 revealed that the veteran sought VA care after reporting generalized joint pain and a fever. The veteran was admitted for additional evaluation and was suspected of having tuberculosis of the lung, minimal, as well as rheumatoid arthritis of the spine. Subsequent documentation associated with this hospitalization diagnosed the veteran as having active pulmonary tuberculosis. No evidence of lung cancer was noted. Associated with the veteran's claims file is a private medical opinion dated October 1951 from M. Perlich, M.D. Dr. Perlich reviewed chest x-rays dated July 1946 and observed the presence of an increased density in the medial part of the right third posterior intercostal space. Dr. Perlich opined that the veteran's tuberculosis was most likely present at that time, but remained dormant for several years until February 1951 when the veteran had an "acute episode" of tuberculosis. No evidence of lung cancer was noted. A special chest insurance examination conducted by D. Minnis, M.D. dated November 1951 found the veteran to have minimal active pulmonary tuberculosis. Dr. Minnis noted that the veteran was, however, "improving rather rapidly." He also noted review of the March 1946 separation film and indicated that it did not show evidence of pulmonary tuberculosis. A follow-up examination dated August 1952 found the veteran's minimal pulmonary tuberculosis to be inactive. The veteran was cleared to return to full-time light work. Similarly, chest x-rays administered in February 1965 at the request of S. Goldenthal, M.D. were interpreted to be normal. No evidence of lung cancer was noted at that time. A private medical opinion dated July 1973 from C. Dehmlow, M.D. is associated with the veteran's claims file. Dr. Dehmlow indicated that the veteran was admitted to Marietta Memorial Hospital (MMH) in January 1973 with concerns of lethargy, fatigue, fever, and upper respiratory tract symptoms. Dr. Dehmlow noted that the veteran spent the previous eight months pioneering various projects in the chemical line for his employer Olin Mathieson. It was noted that the veteran had numerous, repeated exposures to toxic fumes from hydrocarbons. Dr. Dehmlow stated that "I believe he obstructive bronchitis type of picture, the peripheral neuritis, and the so-called adrenal problem have all been related to this man's polymer exposure." No references to the veteran's military service were contained in this opinion. The veteran was afforded a VA Compensation and Pension (C&P) Examination in February 1999 to assess the severity of his arthritis. At the time of the examination, the examiner noted that the veteran experienced dementia which had increased for the past four years. The veteran's wife indicated that the veteran worked as a metallurgical and electrical engineer following service, but that he was involved in a work-related explosion 11 or 12 years prior to the examination. He was exposed to a chemical compound, Vydax, which allegedly caused nerve damage. The veteran was placed in an assisted living complex two months prior to the VA examination and he reported arthritic pain in all of his joints. The examiner diagnosed the veteran as having Alzheimer's dementia with possible CVA and/or side effects from medication, as well as degenerative osteoarthritis of the cervical and lumbosacral spine. The examiner also noted the presence of adhesive capsulitis and/or arthritis and/or bursitis of the right shoulder. The examiner indicated that the veteran also had generalized osteoarthritis, arteriosclerotic heart disease, and essential hypertension. In a private treatment note dated July 2001, C. Bozeman, M..D., indicated that the veteran had arthritis for "many years" and that the arthritis had gradually worsened and spread to other parts of his back and body. Dr. Bozeman also noted that the veteran recently fell down and fractured his hip. Dr. Bozeman stated that it was as likely as not that the veteran's arthritis contributed to his fall. The Board notes that newspaper articles dated November 2001 are associated with the veteran's claims file. These articles detailed the veteran's innovative contributions in the engineering field to the metals process industry. Notably, the veteran stated in these articles that he believed his current health problems were related to his exposure to hydrocarbon fumes. The veteran's military service was noted in one of the articles, but none of his health problems were linked to his military service. A statement dated March 2002 authored by O. Agee, M.D. certified that the veteran was a patient at the Maryville Healthcare and Rehabilitation Center. The veteran was admitted indefinitely due to the following conditions: benign hypertension, malignant colon neoplasm, senile dementia, Alzheimer's type, and edema of the legs. No references to the veteran's military service were contained in this statement. VA administered another C&P examination in September 2002. It was noted at the time of the examination that the veteran had dementia as well as numerous joint complaints. The veteran's past medical history was significant for hypertension, colon cancer, and lung cancer. The veteran was diagnosed as having degenerative disc disease (DDD) of the cervical and lumbar spine, degenerative joint disease (DJD) of the hands, fingers, knees, and wrists bilaterally, acromioclavicular (AC) shoulder joint hypertrophy with deceased range of motion and pain, Alzheimer's Disease, and hypertension. The Board notes that the diagnoses of DDD, DJD, and AC joint hypertrophy were supported by radiographic evidence. Private treatment records from East Tennessee Oncology/Hematology, Royal Care of Pigeon Forge, and Fort Sanders Sevier Medical Center are associated with the veteran's claims file. These treatment records documented the veteran's numerous medical conditions including colon cancer, Alzheimer's Disease, hypertension, arteriosclerotic heart disease, and hip fracture. No references to the veteran's military service were noted in these treatment records. The Board notes that the appellant directed VA to obtain medical treatment records from various private providers dated November 18, 2002, including K. Cline, M.D., and the Maryville Healthcare and Rehabilitation Center. Dr. Cline responded in July 2006 that she was not the veteran's physician at that time, while S. Booring of the Maryville Healthcare and Rehabilitation Center responded that the veteran was not a patient of the facility on that date. S. Booring indicated that additional medical records could be obtained from Blount Memorial Hospital. Medical treatment records obtained from Blount Memorial Hospital (BMH) revealed that the veteran was admitted to the hospital on November 12, 2002. A history and physical examination taken at that time indicated that the veteran was being evaluated for dysphagia, increased cough and thickening of secretions, and shortness of breath. Chest x-rays taken at that time were interpreted to show probable metastic disease with infiltrate and pleural effusion. The veteran's wife stated that the veteran did not have nausea or vomiting, but that he experienced fever, chills, shortness of breath, and cough. No complaints of chest pain, diarrhea, constipation, or other complaints were noted. The veteran's past medical history was significant for hypertension, seizure disorder, dementia, and a history of remote colon cancer, status-post resection. Physical examination of the veteran's lungs revealed fairly severe bilateral rhonchi with diminished breath sounds over the right. Cardiovascular examination showed regular rate and rhythm without murmur, rub, or gallop. The impression was pneumonia, probable metastic disease with probable lung masses; metastic colon cancer versus metastic lung cancer; history of dementia, hypertension, and seizure disorder. The veteran was admitted for further evaluation. No references to the veteran's military service were included in the examination report. A death summary dated November [redacted], 2002 indicated that the veteran was given respiratory treatments following admission to BMH. The veteran's condition briefly improved and stabilized, but he subsequently experienced an acute episode of shortness of breath on November [redacted], 2002. The veteran's condition continued to deteriorate until his death. At the time of the veteran's death, he was known to have metastic lung carcinoma and dementia. No references to the veteran's military service were included in the death summary. The death certificate shows that the veteran died in November 2002 at the age of 81. The immediate cause of the veteran's death was listed as lung cancer and that the immediate cause of death was due to or a consequence of cerebrovascular accident and dementia. The death certificate does not contain any indication that the cause of death was related to service. Likewise, private medical records associated with the claims file do not provide any support for the claim of service connection for the cause of the veteran's death. Following the veteran's death, VA requested an opinion regarding the cause of the veteran's death. In an April 2005 opinion, the VA examiner stated that he reviewed the veteran's claims file, military records, and clinical records. The examiner noted that the veteran was service connected for degenerative arthritis and that the veteran died in November 2002 as a result of lung cancer, cerebrovascular accident, and dementia. The examiner further stated: In my opinion, I wish to state that the cervical arthritis and any further arthritis was not approximate [sic] cause of his demise and in my opinion it is not least likely as not a main contributing factor to his death as the arthritis was a lifelong chronic illness that continued to plague him in spite of his multiple problems, which included elevated blood pressure, neoplasm of the colon, severe Alzheimer's type dementia, lung cancer, and CVA. Although the Board is sympathetic to the appellant's situation, service connection for the cause of the veteran's death is not warranted in this instance. The veteran had a diagnosis of lung cancer during his lifetime, however, there is no evidence of in-service occurrence of this disease, nor is there medical evidence of a nexus between the claimed in- service disease and the disability which was not diagnosed until many years after service. The medical evidence of record fails to show any indication that the veteran experienced cardiovascular or respiratory problems in service, nor were any cardiovascular problems noted within one year of separation from service. The Board acknowledges that the veteran was treated for pulmonary tuberculosis in 1951, however, the weight of the probative evidence is against finding that the condition was incurred in service nor may it be presumed to have been incurred in service. An examiner reviewed the veteran's separation film and determined that pulmonary tuberculosis was not shown. This is probative evidence that the veteran did not have tuberculosis at discharge from service. Moreover, the evidence of record did not show the presence of tuberculosis to a degree of 10 percent within three years of discharge. See Diagnostic Codes 6701-6724, Schedule for Rating Disabilities, 1945 ed. While a physician noted the presence of an increased density on a July 1946 x-ray and opined that tuberculosis was present and dormant until 1951 when the veteran had an acute episode, this does not constitute disability to a degree of 10 percent. Aside from his treatment for pulmonary tuberculosis, the Board notes that first pertinent post-service treatment record is dated many years after service. Notably, Dr. Dehmlow stated in July 1973 that the veteran's respiratory problems were related to his repeated exposure to toxic fumes from hydrocarbons while working in the private sector. The United States Court of Appeals for the Federal Circuit has determined that 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 lapse of decades between service and the diagnosis of lung cancer is evidence against the appellant's claim. In addition, the death certificate does not contain any indication that the cause of death was related to service. There is also no medical evidence of record linking a cerebrovascular accident or dementia to service or to a service-connected disability. The appellant in this case argued that the veteran's arthritis prevented cardiovascular exercise which purportedly caused a cerebrovascular accident (CVA). The appellant also claimed that the veteran had "weakened lungs" which eventually led to lung cancer and ultimately, his death. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Court has also held that lay persons, such as the appellant, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). Here, the appellant was capable of observing the veteran's shortness of breath and/or sedentary nature, but the appellant is not competent (i.e., professionally qualified) to offer an opinion as to the cause of the veteran's death. In this regard, the Board points out that the April 2005 statement by the VA examiner is highly probative evidence in this case. The examiner reviewed the veteran's claims file and concluded that his service-connected arthritis was not the proximate cause or contributing factor to his death. Accordingly, the Board finds that service connected arthritis did not cause or contributed to the cause of the veteran's death. In summary, the evidence of record shows that the diseases which resulted in the veteran's death were not manifested during service or within any applicable presumptive period. Moreover, there is no competent medical evidence of record to show that the diseases were related to service. Accordingly, the Board finds that the veteran's death was not caused by, or substantially or materially contributed to by, a disability or disease incurred in or aggravated by service. The Board considered the doctrine of reasonable doubt in reaching this decision; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not applicable in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Dependents' Educational Assistance (DEA) Benefits The child or a surviving spouse of a veteran is eligible for educational assistance benefits under 38 U.S.C.A., Chapter 35 where the veteran was (1) discharged from service under conditions other than dishonorable, or died in service; or (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability. 38 C.F.R. § 3.807(a). In this case, the veteran had an honorable discharge from the United States Air Force. As explained above, however, the veteran did not have a permanent total service-connected disability during his lifetime or at the time of his death, and the cause of the veteran's death is not service- connected. Accordingly, the criteria for eligibility for DEA benefits are not met, and neither the appellant nor the appellant's children are entitled to such benefits. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist appellants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and 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 appellant 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 appellant is expected to provide; and (4) must ask the appellant to provide any evidence in her 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). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Board notes that the appellant did not receive proper notification in this case. 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-appellant 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 appellant, see Vazquez-Flores v. Peake, 22 Vet. App. 37, 48-9 (2008)(noting that "[a]ctual 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, 22 Vet. App. at 56. In an initial letter to the appellant dated March 2003, the appellant was instructed to submit evidence detailing the cause of the veteran's death. The appellant was also informed to present medical evidence which established a relationship between the cause of death, and any injury, event, or disease in service. The RO issued a statement of the case in December 2003 after the appellant filed a timely notice of disagreement. The statement of the case further discussed the information and evidence needed to substantiate a claim of entitlement to direct service connection as well as entitlement to service connection for the cause of the veteran's death. The claim was subsequently remanded in April 2005 following this notice for additional evidentiary development. The appellant's claim was then readjudicated by way of a supplemental statement of the case issued in February 2008. Additionally, the Board observes that in numerous statements made by the appellant during the pendency of this appeal, the appellant articulated her understanding that the veteran was service-connected for arthritis at the time of his death and that it was her belief that his severe arthritis contributed to cause his death. Given her contentions and the evidence of record, the appellant has demonstrated her affirmative understanding, i.e., she had actual knowledge of what was necessary to substantiate the claim. Thus, the purpose of the notice, to ensure that she had the opportunity to participate meaningfully in the adjudication process, was not frustrated because she had actual knowledge of what was necessary to substantiate the claim prior to the Board's consideration of these matters, ensuring the essential fairness of the adjudication. Based on the notices provided to the appellant, the Board further finds that a reasonable person could be expected to understand what information and evidence is required to substantiate a claim of service connection for the cause of the veteran's death. In sum, the Board finds that any notice errors with respect to the information and evidence needed to substantiate a claim of service connection for the cause of the veteran's death are harmless error and did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). The presumption of prejudice on the VA's part has been rebutted in this case by the following: (1) the appellant clearly has actual knowledge of the evidence she is required to submit in this case based on her contentions and the communications sent to the appellant over the course of this appeal; and (2) based on the appellant's contentions and the communications over the course of this appeal, she is found to be reasonably expected to understand from the notices provided what was needed. The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. In the present appeal, the appellant had actual knowledge of the information and evidence needed to substantiate her claim of entitlement to service connection for the cause of the veteran's death, and she was provided with notice, via a July 2006 letter, of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues has been obtained. The veteran's available service medical records have been obtained. The veteran's post-service treatment records have been obtained. The veteran's was afforded multiple VA examinations during his lifetime, and VA obtained an additional medical opinion as to the cause of the veteran's death in this case. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the appellant's claims. Therefore, no further assistance to the appellant with the development of the evidence is required. ORDER Service connection for the cause of the veteran's death is denied. Entitlement to DEA benefits is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs