Citation Nr: 0814909 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-17 125 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant, and her daughter and son-in-law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from August 1942 to November 1945. He passed away in December 2004. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision by the RO that denied the appellant's claims. The appellant perfected a timely appeal of these determinations to the Board. In March 2008, the appellant and her daughter and son-in-law, accompanied by the appellant's representative, testified at a hearing before the undersigned Veteran's Law Judge at the RO. A transcript of these proceedings has been associated with the veteran's claims file. At the March 2008 hearing, the record was held open for 60 days in order to afford the appellant additional time to submit additional evidence in connection with her claims. No additional evidence, however, was submitted. In March 2008, the Board granted the appellant's motion to have her case advanced on the Board's docket. FINDINGS OF FACT 1. The veteran died in December 2004, at age 83. The immediate cause of death was recorded as being squamous cell carcinoma of the neck metastasized to the brain due to or as a consequence of coronary artery disease and cardiomyopathy, cerebrovascular accident, and history of prostate cancer and basal cell cancer of the skin. No other significant conditions contributing to death but not resulting in the underlying cause were noted. An autopsy was not performed. 2. At the time of the veteran's death, service connection had been established for PTSD, evaluated as 70 percent disabling; and for dermatitis, evaluation as noncompensable; the veteran also had been assigned a total compensation rating bases on individual unemployability, effective on January 17, 2003. 3. The veteran is not shown to have manifested complaints or findings of the squamous cell carcinoma, cardiovascular or cerebrovascular disease, prostate cancer or basal cell skin cancer in service or for many years thereafter; nor is any of the identified conditions shown to be due to any event or incident of the veteran's service. 4. A service-connected disability is not shown to have caused or contributed materially in producing or accelerating the veteran's death. 5. At the time of his death, the veteran was not in receipt of, or entitled to receive, compensation for service- connected disability that was rated totally disabling by a schedular or unemployability rating for a period of ten years immediately preceding his death. CONCLUSIONS OF LAW 1. A service-connected disability did not cause or contribute substantially or materially in producing the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.312 (2007). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22(a)(2)(i) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. By way of a letter dated in February 2005, the appellant was furnished notice of the type of evidence needed in order to substantiate her claims. The appellant was also generally informed that she should send to VA evidence in her possession that pertains to the claims and advised of the basic law and regulations governing the claims, the cumulative information and evidence previously provided to VA (or obtained by VA on the appellant's behalf), and provided the basis for the decisions regarding the claims. The appellant was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claims, and she was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on her behalf. For these reasons, the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). In addition, where the claims involve basic entitlement to service connection, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all of the elements of a claim for service connection, including notice that a disability rating and effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The reasoning of this case applies here. Even with defective notice on these latter two elements, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, supra. In this regard, as the Board concludes that the preponderance of the evidence is against the appellant's claims, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The Board also finds that VA has made reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service medical records, post-service medical records and reports, the appellant's testimony before the Board, and statements submitted by the appellant and her representative in support of the claims. Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the appellant's claims and that, under the circumstances of this case, VA has satisfied its duty to assist the appellant. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Service connection for the cause of the veteran's death. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The surviving spouse of a veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. § 3.312(a). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether a 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In this case, the evidence of record shows that the veteran died in December 2004 at the age of 83. The immediate cause of death was listed as being squamous cell carcinoma of the neck metastasized to the brain, due to or as a consequence of coronary artery disease and cardiomyopathy, cerebrovascular accident, and history of prostate cancer and basal cell cancer of the skin. No other significant conditions contributing to death but not resulting in the underlying cause were noted, and an autopsy was not performed. At the time of the veteran's death, he was service-connected for PTSD, evaluated as 70 percent disabling, and dermatitis, evaluated as noncompensable. The veteran was awarded individual unemployability, effective on January 17, 2003. In this case, the appellant asserts that the veteran's death was caused by his service-connected PTSD in that it contributed in a significant way to his coronary artery disease and cerebrovascular accident. The medical evidence, however, does not support a finding that any reported cancer of the neck, prostate or skin or coronary artery or cerebrovascular disease was caused or aggravated by the service-connected PTSD. There is also no showing that any of the conditions identified as being implicated in the veteran's demise had their onset in service or for many years thereafter. Based on the foregoing, the Board finds that the evidence preponderates against the claim of service connection for the cause of the veteran's death. Service connection will be granted to a veteran that develops cancer or a heart condition in service or within one year of service. 38 C.F.R. § 3.303, 3.307, 3.309. Here, the evidence does not show that the veteran was found to have cancer or a heart disability in service or within one year after service. The veteran's post-service medical records do not reveal a causal link between the any of the identified cancers, the coronary artery disease or the cerebrovascular accident and any event or incident of his active service. Finally, the service-connected PTSD is not shown to have contributed materially of substantially in producing or accelerating the veteran's demise. In sum, the medical evidence in this case does not support a finding that a service-connected disability caused or contributed materially to cause his death. Under VCAA, VA is obliged to obtain a medical opinion when the record contains competent evidence that the veteran had a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). Here, none of these conditions is present. The evidence of a link between current disability and service must be competent, and the appellant is required to show some causal connection between the disability and the veteran's military service. Wells v. Principi, 326 F.3d 1381, 1338 (Fed. Cir. 2003). A disability alone is not enough. Id. In this case, the record contains medical evidence showing the cause of the veteran's death, but no medical evidence indicating that such conditions were related to the veteran's active service. 38 C.F.R. § 3.159(c)(4) (2002); see also Wells v. Principi, 326 F.3d 1381 (2003); Charles v. Principi, 16 Vet. App. 375 (2002). The Board therefore concludes that a VA medical opinion is not necessary in this case. The Board, however, is precluded from reaching its own unsubstantiated medical conclusions, and is instead bound by on these matters by the medical evidence of record. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); in Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the absence of competent medical evidence to support the claim, service connection for the cause of the veteran's death must be denied. III. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. Section 1318 of title 38, United States Code, authorizes payment of DIC to a benefits-eligible surviving spouse in cases where a veteran's death was not service connected, provided the veteran was in receipt of or entitled to receive compensation at the rate of 100 percent (total rating) due to service-connected disability for a period of ten or more years immediately preceding death. The statute was implemented at 38 C.F.R. § 3.22. As noted, the evidence in this case shows that the veteran died in December 2004 at the age of 83. The immediate cause of death was squamous cell carcinoma of the neck that had metastasized to the brain, due to or as a consequence of coronary artery disease and cardiomyopathy, cerebrovascular accident, and history of prostate cancer and basal cell cancer of the skin. At the time of his death, the veteran was service-connected for PTSD, evaluated as 70 percent disabling, and dermatitis, evaluation as noncompensable; he had also been assigned a total compensation rating based individual unemployability, effective on January 17, 2003. Because the veteran was not in receipt of or entitled to receive compensation at the rate of 100 percent (total rating) due to service-connected disability for a period of ten or more years immediately preceding his death, DIC benefits are not payable in this case under the provisions of 38 U.S.C.A. § 1318. The appellant also has not presented argument referable to clear and unmistakable error in any decision on a claim filed during the veteran's lifetime. Based on the foregoing, the appellant's claim for DIC must be denied as a matter of law. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Mason v. Principi, 16 Vet. App. at 132; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the veteran's death is denied. The claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs