Citation Nr: 0814422 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 07-12 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran served on active duty in the military from July 1944 to May 1946 with additional time in the reserves. He died in May 1976. The appellant is his widow. She appealed to the Board of Veterans' Appeals (Board) from a December 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that the appellant submitted additional evidence subsequent to the final adjudication of the issue by the RO. However, as the additional evidence consists solely of copies of documents previously considered by the RO before conducting its initial adjudication of the matter, the Board finds that a remand for RO consideration of the copies is unnecessary. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The veteran died in May 1976 as a result of acute myocardial infarction. 3. The persuasive evidence of record demonstrates a disease or injury which caused or contributed to the veteran's death was not incurred in or aggravated by service. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in October 2006. That letter notified the appellant of VA's responsibilities in obtaining information to assist the appellant in completing her claim, identified the appellant's duties in obtaining information and evidence to substantiate her claim, and requested that the appellant send in any evidence in her possession that would support her claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The appellant has been made aware of the information and evidence necessary to substantiate her claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the October 2006 correspondence. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. As the appellant has not provided any final hospital records or specific information about the veteran's treatment at the time of his death, there is no apparent disagreement as to the immediate and consequent causes of death listed on his death certificate. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2007). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection can be granted for certain diseases, including cardiovascular-renal disease and organic heart disease, if manifest to a degree of 10 percent or more within one year of separation from active service. Where a veteran served 90 days or more of continuous, active military service during a period of war and certain chronic diseases (including cardiovascular-renal disease and organic heart disease) become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Factual Background and Analysis In this case, the appellant contends that the veteran's death in May 1976 as a result of acute myocardial infarction was caused or materially affected by his active service. She also contends that the veteran had a psychiatric disorder that was caused by his active service that contributed to his acute myocardial infarction. Service treatment records for the veteran's period of active duty are negative for any signs, symptoms, or treatment for a heart disorder or a psychiatric disorder. The May 1946 separation examination report shows a normal cardiovascular system and no signs of cardiac involvement or a heart problem. The report also noted no neurasthenia, no psychasthenia, no depression, no instability, no worries, and no signs of an abnormal psyche. The record does reflect that in May 1945, the veteran sustained a gunshot wound to the left shoulder and back while engaged in battle on Okinawa. In an October 1946 rating decision, the RO established service connection for gunshot wounds to the veteran's left shoulder and chest. This decision was based on the veteran's service treatment records. A VA examination report from January 1947 reveals a normal cardiovascular system. An X-ray of the chest showed a healed fracture of the left clavicle which was in a good position with no other evidence of pathology involving the chest except for a healed communited fracture which involved the left fourth rib. The examiner noted a nervous "tick" to the veteran's face with blinking eyes and twisting neck to the left. It was observed that the veteran was intelligent, slept well, and exhibited no nervous tremors. His thinking process was noted to be normal. In February 1949, a VA exam again revealed a normal cardiovascular system. An X-ray showed several small calcifications in the right hilus and right base which appeared stable. The size of the heart and great vessels appeared to be normal. It was noted that the veteran was irritable and restless. He had difficulty with social adjustments. The examiner stated that no psychiatric diagnosis could be made, but a neuropsychiatric interview was in order. Private correspondence from O.J.S. dated in November 1950 states that the veteran served in the reserves and had been activated. It was noted that the veteran was unfit for duty in the Marine Corps and was "on the verge of nervous collapse." Medical correspondence from G.O., M.D., dated December 1950 states that the veteran was in an unstable state following his discharge from the Marine Corps and had psychosomatic complaints. It was noted that the veteran had psychosomatic difficulties, anxiety, and tension. The doctor opined that the veteran suffered from a psycho-neurosis, anxiety type which was moderate and in the process of undergoing an improvement. A VA examiner noted in March 1951 that the veteran had no signs of a problem with his cardiovascular system. The examiner also indicated that there were no signs of a neurological or psychiatric disorder. The RO established service connection for a pleural cavity injury in a March 1951 decision. This decision was based on the service treatment records and VA examination reports. In May 1976, the veteran died. The death certificate lists the cause of death as acute myocardial infarction with no underlying causes. The interval between onset and death was five weeks. No other significant conditions were listed on the death certificate. The appellant stated in June 2006 that the veteran had been severely injured during his active duty. She mentioned that two days before his heart attack, she saw the veteran wearing his service cover. She said that the veteran had large mental swings that were preceded by sudden jerking of his head and slurred speech. She recalled a situation where the veteran tried to suffocate their baby son. She said that the veteran would punch her in the face, knock her down on the bed, and would try to smother her. Based upon review of all the evidence, the Board finds the persuasive evidence of record demonstrates a disease or injury which caused or contributed to the veteran's death was not incurred in or aggravated by service. There is no evidence of a heart disorder in any of the service treatment records. There is also no evidence of record which provides a link between the veteran's acute myocardial infarction with any signs, symptoms, or disease manifest during his active service. Additionally, there is no evidence of record which provides a connection between the veteran's service-connected gunshot wounds and his acute myocardial infarction. Without evidence of that link, service connection cannot be granted. The Board finds the lack of a listing of a secondary or other significant condition on the veteran's death certificate persuasive evidence that the acute myocardial infarction was not secondarily caused by the veteran's service-connected gunshot wounds. The death certificate was prepared by a doctor who had attended the veteran for fifteen years prior to his death, and the doctor indicated that he saw the veteran at the time of his death. The Board has considered the appellant's assertions that the veteran had a mental disorder which secondarily caused his acute myocardial infarction. While private medical correspondence from December 1950 states that the veteran had a psychoneurosis, the doctor opined that the disorder was undergoing an improvement. The Board finds the March 1951 VA examination report to be persuasive evidence that any psychosis suffered by the veteran had resolved. The Board also finds the absence of medical treatment for a mental disorder between December 1950 and the veteran's death persuasive evidence that any previous mental disorder had resolved. Additionally, no mental disorder was listed on the veteran's death certificate. The Board has carefully considered the statements offered by the appellant and notes that lay persons can attest to factual matters of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds the appellant's statements regarding her observations and experiences with the veteran competent regarding what she perceived through her senses. However, while the appellant may sincerely believe that the veteran had a mental disorder which contributed to his cause of death, she is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, her statements regarding the causation of the veteran's death cannot be considered competent medical evidence. The Board also finds the appellant is not entitled to service connection for the cause of the veteran's death on a presumptive basis under 38 C.F.R. § 3.309. There is no evidence of a cardiovascular-renal disease or organic heart disease within the veteran's first post-service year. Therefore, entitlement to service connection for the cause of the veteran's death must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against this claim. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs