Citation Nr: 0814068 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 07-20 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1950 to July 1954. The appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, denied entitlement to the above condition. In December 2007, the appellant provided testimony at a hearing before the undersigned at the Boston RO. A transcript of the hearing is of record. The Board notes that the appellant's April 2006 notice of disagreement also initiated an appeal with the denial of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. Although the May 2007 statement of the case (SOC) addressed this issue, in the June 2007 Form 9 the appellant specifically limited her appeal to the issue of entitlement to service connection for the cause of the veteran's death, and the § 1318 issue has not been certified as being on appeal. Therefore, the claim for entitlement to DIC under 38 U.S.C.A. § 1318, is not before the Board. 38 C.F.R. § 20.200 (2007). FINDINGS OF FACT 1. The veteran died in October 2005 due solely to the effects of septicemia, pneumonia, and a urinary tract infection with acute renal failure. 2. At the time of the veteran's death, service connection was in effect for generalized anxiety disorder, low back strain with degenerative arthritis, and residuals of an amputated left middle finger. 3. Septicemia, pneumonia, and a urinary tract infection with acute renal failure were not incurred during service or until many years after discharge and are not otherwise etiologically related to service or the veteran's service- connected disabilities. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in January 2007, subsequent to the initial adjudication of the claim, the RO notified the appellant of the evidence needed to substantiate her claim for entitlement to service connection for the cause of the veteran's death. The letter also satisfied the second and third elements of the duty to notify by informing the appellant that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that she was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the January 2007 letter contained a notation that the appellant should submit any evidence in her possession pertinent to the claim on appeal. The veteran's status as a veteran has been substantiated. The appellant was notified of the second and third elements of the Dingess notice by the January 2007 letter. In addition, at that time she was provided information regarding the effective date element of her claim. While she did not receive information regarding disability ratings, such ratings are not implicated in the payment of DIC, based on service connection for the cause of death. Since the claim is for service connection for the cause of the veteran's death and the claim is being denied, no disability rating will be assigned. Therefore, the appellant is not prejudiced by the absence of notice on the rating element. 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). The Court has held that 38 U.S.C.A. § 5103(a) requires that compliant VCAA notice, in the context of Death Indemnity Compensation (DIC) claims, requires (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 (2007). The appellant has not been provided VCAA notice that complies with the Court's decision in Hupp. Any notice error will be presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication and persuade the Court that the purpose of the notice was not frustrated, for example by demonstrating "(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, 888-9 (Fed. Cir. 2007), George- Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). The Board acknowledges that the appellant has not been provided the specific notice described by the Court in Hupp, but the Board does not find that this procedural defect constitutes prejudicial error in this case. The record contains evidence of actual knowledge on the part of the appellant and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claims. In this regard, the appellant has demonstrated actual knowledge that to substantiate the claim the evidence would need to show that the veteran's death was caused by disabilities that were incurred or aggravated by his active duty service. In addition, the appellant has demonstrated actual knowledge of the disabilities for which the veteran was service-connected at the time of his death. In fact, during her December 2007 hearing and in a statement submitted before her hearing, the appellant stated that she believed the veteran's service-connected anxiety disorder was a contributing factor in his death. Finally, the February 2006 rating decision and May 2007 SOC included a discussion of the criteria for establishing service connection for the cause of death based on previously service connected conditions and on the basis of a condition not previously service connected. While such post adjudication notice cannot serve as VCAA notice, Pelegrini II; it should have served to advise a reasonable person of the criteria necessary for establishing the claim for entitlement to service connection for the cause of the veteran's death. The appellant had a reasonable opportunity to participate in the adjudication of her claim, inasmuch as it remained pending for years after the rating decision, and she had the opportunity to submit additional evidence, and have a hearing. The Board therefore finds that the lack of Hupp notice does not constitute prejudicial error. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. VA has not obtained a medical opinion in response to the appellant's claim. The medical evidence of record is sufficient to decide the claim and there is no reasonable possibility that such an opinion would result in evidence to substantiate the claim. In this regard, there is no competent medical evidence that the veteran's death was caused or contributed to by disabilities that were incurred or aggravated by active duty service. As discussed below, the only evidence in support of the appellant's claim is her own statements. As a lay person, the appellant is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet App 303 (2007); Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board finds that remanding the case for the procurement of a medical opinion would serve no useful purpose and would only result in further delay of the case. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Dependency, indemnity and compensation (DIC) is payable to a surviving spouse, if a veteran's death is shown to be service connected. 38 U.S.C.A. § 1310. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). 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). Analysis The certificate of death indicates that the veteran died in October 2005 due to septicemia, pneumonia, and a urinary tract infection with acute renal failure. No other condition was identified as an immediate or contributory cause of death. At the time of the veteran's death, service connection was in effect for generalized anxiety disorder, low back strain with degenerative arthritis, and residuals of an amputated left middle finger. The appellant testified that she believes the veteran's death was caused by the deterioration of his service-connected anxiety disorder which resulted in the need for sedation and led to infections and pneumonia. She has reported that prior to entering a nursing home his behavior became increasingly bizarre and threatening. There is no medical evidence suggesting that the veteran's septicemia, pneumonia, or urinary tract infection with acute renal failure were etiologically related to service or to his service-connected disabilities. Service treatment records are negative for evidence of these conditions, and the examination report for separation from service in July 1954, notes that the veteran's systems, urinalysis, and serology were found to be normal. The post-service medical evidence of record shows that the veteran was hospitalized in December 2004 for increased agitation, confusion, and behavioral dyscontrol. He was noted to have been diagnosed with hypertension, diabetes, Parkinson's disease and dementia. During his hospital stay, his behavior continued to escalate and he was medicated to decrease his anxiety. He developed acute renal failure secondary to urinary retention caused by the impaction of stool. Following a infectious disease consultation, the veteran was noted to have a hypotonic bladder secondary to diabetes and constipation. He was discharged to a long-term care nursing home. His cognitive impairment was noted to be consistent with late-stage dementia. The veteran was admitted to Blaire House Nursing Home in December 2004. He was hospitalized again in October 2005 for lethargy and a fever. He was diagnosed with urosepsis and left facial swelling due to left parotitis. The veteran continued to decline, developing septicemia, a respiratory infection, a urinary tract infection, and methicillin- resistant staph aureus pneumonia. The appellant contends that the veteran's death was caused or by the medication used to control his service-connected generalized anxiety disorder. She essentially contends that the medication caused him to become lethargic, and unable to walk, and lead to the need for a catheter. She asserts that because of his inactivity he developed pneumonia and the catheter became infected, thus leading to his death. The contemporaneous reports show that while he was noted to have anxiety, he was treated for dementia, and physical disabilities. There was no mention of an anxiety disorder. As a lay person, the appellant lacks the expertise to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no medical evidence suggesting that the veteran's active duty service or service-connected disabilities played a material causal role in his death. While the veteran was sedated during his hospital stays, the medical evidence of record establishes that this was due to his advanced dementia, and not because of his anxiety disorder. In addition, there is no evidence of a nexus between the veteran's sedation and his cause of death or between his service-connected disabilities and his cause of death. In light of the absence of any medical evidence supportive of the claim, the Board must conclude that the preponderance of the evidence is against the claim. Accordingly, this appeal must be denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs