Citation Nr: 0814516 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-07 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from August 1977 to October 1981. The appellant seeks benefits as the custodian of the veteran's minor son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 RO rating decision that denied service connection for the cause of the veteran's death. The Board notes that the March 2004 RO decision also denied entitlement to accrued benefits. The appellant also filed a notice of disagreement to that issue in April 2004 and a statement of the case was issued in March 2008. The record does not reflect that a timely substantive appeal has been submitted as to that issue. Thus, the Board does not have jurisdiction over that claim. 38 C.F.R. §§ 20.200, 20.202, 20.302 (2007). FINDINGS OF FACT 1. All requisite notices and assistance to the appellant have been provided, and all evidence necessary for adjudication of the claim has been obtained. 2. The veteran died in December 2002. The death certificate lists the immediate cause of death as a gastrointestinal hemorrhage due to or as a consequence of hepatitis C. These disorders began many years after service and were not caused by any incident of service. 3. At the time of the veteran's death, service connection was not established for any disorders. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute to the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist 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, and 5126 (West 2002) redefined VA's duty to assist a claimant 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, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the appellant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Additionally proper notice will provide a general notification that the claimant may submit any other evidence she has in her possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. Certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case must 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. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In this case, in November 2003 and March 2008 letters, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate the claim for service connection for the cause of the veteran's death, as well as what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the need for the appellant to advise VA of or submit any further evidence she has that pertains to the claim. The March 2008 letter advised the appellant of how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. The case was last readjudicated in March 2008. Additionally, the Board notes that service connection was not established for any disorders at the time of the veteran's death. Thus, VCAA notice as to substantiating a claim for service connection for the cause of the veteran's death based on service-connected disorders was not necessary in this case. Further, in a February 2008 decision review officer conference at the RO, the appellant's case was discussed in detail including her contentions that the veteran received a transfusion after gouging his left leg while in Greece during his period of service. The veteran's representative reported that the veteran did not file a claim for service connection during his lifetime. It was also noted that the veteran's service medical records were missing and that the appellant requested an additional search for those records in support of her claim. The appellant specifically argued that the veteran did not have hepatitis C before entering the military, but that he did have it coming out of service. Clearly, the evidence and information required to substantiate a claim for service connection for the cause of the veteran's death based on a condition not yet service- connected were discussed. Therefore, the Board finds that the appellant was specifically notified of the information required to comply with the requirements indicated in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Boards also observes that the veteran's service medical records are essentially unavailable. A September 2003 VA memorandum noted that the veteran's service medical records were missing and concluded that all efforts to obtain the veteran's military information had been exhausted and that further efforts would be futile. Despite this conclusion, after the February 2008 decision review officer conference at the RO (noted above), an additional request was made to the National Personnel Records Center (NPRC) to obtain the veteran's service medical records. In a February 2008 response, the NPRC indicated that the veteran's entrance examination had been mailed and that there were no additional service medical records. Therefore, the Board finds that a remand for additional notification regarding criteria with which the appellant is already quite familiar and/or to obtain additional service medical records would serve no useful purpose. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's available service personnel and medical records and post-service private treatment records. In March 2008, the appellant indicated that she had no further evidence to submit to substantiate her claim. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant has been an active participant in the claims process, by providing a private physician opinion and by present hearing testimony. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. Moreover, as the Board concludes below that the preponderance of the evidence is against the appellant's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the claims file, which includes: the appellant's contentions; available service personnel and medical records; and post-service private treatment records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the claimant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection for a "chronic disease," such cirrhosis of the liver and ulcers, peptic (gastric or duodenal), may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet.App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The appellant essentially contends that the veteran's death was caused by his hepatitis C and that he contracted such condition during his period of service. The appellant alleges that the veteran gouged his leg and needed a transfusion while he was in Greece during his period of service and that he contracted hepatitis at that time. The veteran had active service from August 1977 to October 1984. The available service personnel records indicate that he had three years, ten months, and thirteen days of sea service and that he served aboard the USS McConnell. The veteran's service medical records are essentially unavailable. On a medical history form at the time of the July 1977 induction examination, the veteran checked that he had stomach, liver, or intestinal trouble. The reviewing examiner noted that the veteran reported that he had stomach trouble that was relieved by multivitamins and that such condition was not significant. There was also a notation that the veteran underwent a bone graft for his right wrist in 1973 following a possible hairline fracture. The objective July 1977 induction examination report included a notation that the veteran's abdomen and viscera were normal. Such records did not include any references to a chronic gastrointestinal disorder or to hepatitis C or any liver problems. Post-service private treatment records show treatment for disorders including hepatitis C. An April 1998 report from Martha's Vineyard Hospital noted that the veteran was seen for review of Lyme antibody titers. The veteran reported that he had suffered diffuse joint pain in his hands, elbows, wrists, and knees for about the previous two or three months. It was noted that none of those areas had ever been red, hot, or swollen. The veteran stated that he had also felt fatigued. The assessment was no evidence of Lyme disease by immunoblot testing pursuant to the testing results supplied. The examiner indicated that the veteran most likely had hemochromatotis and hepatitis C depending on hepatitis C/RNA testing. An October 1998 private rheumatology report, apparently from Martha's Vineyard Hospital, noted that the veteran had a past medical history that was notable for hepatitis C. As to an impression, the examiner indicated that it was felt that it was very possible that the veteran had joint pains related to his hepatitis C infection. An October 1998 report from such facility indicated that the veteran clearly had a hepatitis C infection. It was noted that hypersplenism, thrombocytopenia, and mild coagulopathy were consistent with a clinical picture of well-compensated cirrhosis. It was also reported that the veteran's joint pains might be related to his hepatitis C infection. A November 1998 surgical pathology report, as to a liver biopsy, related a final diagnosis of hepatitis C, chronic hepatitis. August 2000 and September 2000 treatment entries from A. I. Gonzales, M.D., related impressions that included hepatitis C. A June 2001 statement from W. F. Brown, M.D., noted that the veteran had been unable to work because of cramps. It was noted that the cramps took the form of charley-horse-like sensations that occurred especially in his hamstrings, but sometimes in the veteran's hips and elsewhere. Dr. Brown noted a history of hepatitis C for which the veteran took Interferon at one point. It was also noted that he had carpal tunnel-like symptoms and fibromyalgia. Dr. Brown indicated that there were no other notable features in the veteran's personal past or family histories. Dr. Brown stated that there was no evidence of myotonia or neuromyotenia as well as no evidence of myopathy or neuropathy. Dr. Brown stated that he was not sure what the basis of the muscle cramps had been. An August 2001 statement from N. H. Bass, M.D., noted that the veteran reported that he had a progressive syndrome, with an onset of four to seven years, involving his arms, back, and legs. It was noted that the pain syndrome was associated with painful muscle cramps (contractures) involving the proximal muscles of the lower and upper extremities including the hands and feet. The diagnoses included painful muscle cramps and stiffness, onset of 1996, involving the upper and lower extremities without evidence of myotonia, and rule out muscle contractures associated with metabolic myopathy; chronic pain syndrome involving the back and legs secondary to fibromyalgia; and hepatitis C resulting from blood transfusions approximately twenty years ago. A December 2001 report from S. A. Greenberg, M.D., noted that the veteran complained of diffuse muscle cramps and pain for several years. It was noted that the veteran was seen without his medical records. The veteran reported that he had several years of increasingly frequent sudden painful contractions of his muscles, particularly in the posterior thighs and calves. He described a hard-type sensation in the muscles that was often relieved by stretching the limb, but that sometimes the pain would continue for hours and was not relieved by stretching. It was noted that the veteran's past medical history was remarkable for hepatitis C attributed to a blood transfusion while serving in the navy. Dr. Greenberg noted that the veteran did not have a history of drug abuse and that he did not smoke cigarettes or drink alcohol. The report was apparently missing a page and did not include diagnoses. The veteran died in December 2002. The death certificate listed the immediate cause of death as a gastrointestinal hemorrhage due to or as a consequence of hepatitis C. The veteran was not service-connected for any disorders during his lifetime. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that an August 2001 statement from Dr. Bass indicated diagnoses including hepatitis C resulting from blood transfusions approximately twenty years ago. Additionally, a December 2001 report from Dr. Greenberg noted that the veteran's past medical history was remarkable for hepatitis C attributed to a blood transfusion while serving in the Navy. The Board observes, however, that such references to hepatitis C being caused by blood transfusions twenty years earlier or in the service were nothing more than a recitation of the veteran's belief. As such, they are not probative in linking the veteran's hepatitis C with service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). There is no specific evidence of record that the veteran underwent blood transfusions during his period of service. The Board notes that there is no medical evidence of a chronic gastrointestinal disorder or of hepatitis C or any liver problems, during the veteran's period of service or for many years after service. The post service private treatment records submitted by the appellant are dated between 1998 and 2001 and the appellant indicted in March 2008 that she had no other evidence to submit. The probative medical evidence does not suggest that any such disorder was related to any incident of service. Furthermore, there is no competent evidence of record showing that the disorders that resulted in the veteran's death, a gastrointestinal hemorrhage and hepatic C, were incurred in or aggravated by service or were proximately due to or the result of any disease or injury incurred in or aggravated by service. The Board has considered the appellant's contentions. However, the appellant as a layperson, is not competent to give a medical opinion on the diagnosis or etiology of a condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The weight of the credible evidence demonstrates that the conditions involved in the veteran's death occurred many years after service and were not caused by any incident of service. The fatal conditions were not incurred in or aggravated by service, and they were not service-connected. A disability incurred in or aggravated by service did not cause or contribute to the veteran's death, and thus there is no basis for service connection for the cause of the veteran's death. The preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In making this determination, the Board does not wish to convey any lack of sympathy for the appellant in this matter, nor for the unfortunate circumstances which resulted in the veteran's death. Moreover, the Board does not doubt the sincerity of the appellant's contentions. That being said, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs