Citation Nr: 0814095 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-24 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. M. Powell, Associate Counsel INTRODUCTION The veteran had active service from December 1944 to July 1946. The veteran died in November 2002. The appellant is the veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2002 rating decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In this regard, a January 2003 statement from the appellant is construed as a timely notice of disagreement. The claim was previously before the Board in August 2006, at which time it was remanded for additional development. FINDINGS OF FACT 1. During the veteran's lifetime service connection was not established for any disability. 2. The veteran died in November 2002 from respiratory failure due to or as a consequence of sepsis syndrome of 2 weeks duration, due to or as a consequence of liver failure (with onset months earlier), initially demonstrated years after service, and not shown by competent clinical evidence to be related to active service. CONCLUSION OF LAW A service-connected disability did not cause, or contribute substantially or materially, to the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 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 claimant and his or 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) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VCAA notice letters, dated in March 2003, August 2003, and September 2006, from the agency of original jurisdiction (AOJ) to the appellant, informed the appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence, as well as requested that she submit any evidence in her possession pertaining to the claim. The Board observes that the aforementioned letters also provided the appellant with notice of the type of evidence necessary to establish an effective date in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims 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 a claim for VA benefits. In the present case, VCAA notification was provided after the initial AOJ adjudication of the claim. Nevertheless, the Court in Pelegrini noted that such requirement did not render a rating decision promulgated prior to providing the veteran VCAA notice void ab initio, which in turn would nullify the notice of disagreement and substantive appeal filed by the appellant. In other words, Pelegrini specifically noted that there was no requirement that the entire rating process be reinitiated from the very beginning. Rather, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. Here, the Board finds that any defect with respect to the timing of the VCAA notice letter was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. In Hupp v. Nicholson, 21 Vet App 342 (2007) the Court stated that where the veteran was service-connected for any disability during his lifetime, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or 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. The first two notice elements listed in Hupp were not provided in the VCAA letters noted above that were issued to the appellant. However, as noted above, service connection had not been established for any disability during the veteran's lifetime. With regard to any deficiency as to the third element, in Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007), it was held that any VCAA notice error is presumed prejudicial and that it is VA's burden to rebut the presumption. In Sanders, the Federal circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. In this case, the Board finds that the error did not affect the essential fairness of the adjudication. In this regard, the Board finds that the purpose of the notice was not frustrated in this case, as written statements on appeal by the appellant and her representative reflect that any defect was cured by actual knowledge on the part of the claimant of what was needed to substantiate the claim. With regard to the duty to assist, the claims file contains the veteran's service medical records and private and VA treatment records. Additionally, the claims file contains the appellant's statements in support of her claim. The Board has carefully reviewed such statements and concludes that she has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that 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) (2007). Disability which is proximately due to, or aggravated by, a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2007). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. For the 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. 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 relationship. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). Legal Analysis In this case, the appellant asserts that service connection for the cause of the veteran's death is warranted. At the outset, the Board notes that the veteran, during his lifetime, had not had service connection established for any disability. Accordingly, the only question before the Board is whether the veteran's fatal respiratory failure, sepsis syndrome, and/ or liver failure was incurred in or aggravated by service, such that service connection would be warranted. Here, the veteran's November 2002 death certificate establishes that the cause of the veteran's death was respiratory failure due to or as a consequence of sepsis syndrome, due to or as a consequence of liver failure. As the sepsis syndrome was noted to be of only 2 weeks' duration, it was clearly initially manifested decades after service. A review of the veteran's service medical records does not demonstrate that he complained of, or was treated for, any respiratory or liver disability. Indeed, the examiner from the veteran's July 1946 discharge examination reported that the veteran's respiratory system, bronchi, lungs, pleura, etc. and abdomen and pelvis (condition of wall, scars, hernias, abnormality of viscera) were normal. Moreover, the clinical evidence of record reflects that the first diagnosis of a respiratory/ pulmonary condition was in 1987, almost 40 years after his discharge from service. The fatal liver failure was similarly initially demonstrated decades after service. The Board notes that such a lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the record does not contain any clinical opinion that etiologically relates the veteran's respiratory failure, sepsis syndrome, or liver failure to any incident of the veteran's service. The Board acknowledges the appellant's contentions that the veteran's documented in-service acute catarrhal fever was related to various respiratory conditions that the veteran had experienced since service, including tuberculosis, chronic obstructive pulmonary disease, and the Macrobacterium avium complex which ultimately led to his death. In support of her contention is a June 2004 statement by Dr. M. E., one of the veteran's treating physicians, who noted that the veteran's Mycobacterium avium pneumonia was a "definite contributing factor [to the veteran's November 4, 2002 death] partly because of the potential for being an underlying cause of the liver dysfunction...some of the medicines used for treatment of Mycobacterium avium are also causative agents of liver dysfunction." However, the Board, in reviewing the veteran's service medical records, observes that there is no evidence that the veteran's in-service catarrhal fever was, in fact, manifested by respiratory or pulmonary symptomology. Indeed, the April 1946 service medical record which reflects the acute catarrhal fever diagnosis, only shows that the veteran complained experiencing a sore throat and general malaise. Further, on the corresponding physical examination, the examiner only noted that the veteran's throat was red and inflamed. Moreover, although the examiner from the veteran's July 1946 discharge examination reported that the veteran had a history of acute catarrhal fever, he did not report a history of a respiratory or pulmonary illness or injury. Indeed, as noted above, he, in fact, indicated that the veteran's respiratory system, bronchi, lungs, pleura, etc. was normal. Therefore, to the extent that the appellant contends that the veteran's in service catarrhal fever was manifested by respiratory/ pulmonary symptomology, the Board notes that the veteran's contemporaneous service medical records establishes otherwise. The appellant has not established that she is an expert in any related field, and she is therefore not competent to medically recharacterize any of the symptoms that veteran experienced in service with respect to his catarrhal fever. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, the appellant's association of the veteran's in-service catarrhal fever with the veteran's development of Mycobacterium avium pneumonia and subsequent fatal respiratory failure, sepsis syndrome, and liver failure will not be accorded any probative weight. In conclusion, although, the appellant asserts that the veteran's death was etiologically related to service, she is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The only medical evidence of record is to the effect that the veteran did not have a service-connected disability that either caused or contributed substantially or materially to his death from respiratory failure, sepsis syndrome, and liver failure. Although, the Board is sympathetic to the appellant on the loss of her husband, and grateful for his service to this nation, the preponderance of the evidence is against a favorable decision for her claim. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002) and 38 C.F.R. § 3.102 (2007), but it does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the appellant's claim for service connection for the cause of the veteran's death is denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs