Citation Nr: 0923625 Decision Date: 06/23/09 Archive Date: 07/01/09 DOCKET NO. 08-19 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to February 1947. He died in January 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2008). FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss, rated as non- compensably disabling. 2. The Certificate of Death reflects that the Veteran died in January 2008. The immediate cause of death was arrhythmia due to cardiomyopathy. Pneumonia was listed as a significant condition contributing to death. 3. Heart disease and lung disease were not manifest during service and heart disease was not manifest within one year of separation; competent evidence does not show that the post- service diagnoses of heart and lung disease were attributable to service. 4. The Veteran's service-connected bilateral hearing loss was not the immediate or underlying cause of the Veteran's death, and was not etiologically related to the cause of death; the Veteran's service-connected bilateral hearing loss did not contribute substantially or materially to cause the Veteran's death and they was not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease causing death. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303. 3.304, 3.307, 3.309, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a VCAA letter was sent in February 2008. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; and (3) informed the claimant about the information and evidence that the claimant is expected to provide. 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). In DIC cases where the veteran was service-connected during his lifetime, the United States Court of Appeals for Veterans Claims (Court) found that 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. However, where a veteran was not service-connected during his lifetime, the same did not apply. The Court held that in those cases, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Further, section 5103(a) preadjudication notice, the Secretary or VA is not required to inform a DIC claimant of the reasons for any previous denial of a veteran's service-connection claim. In this case, the Veteran was service-connected for hearing loss during his lifetime. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, No. 07- 1209 (U.S. Sup. Ct. Apr. 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The claimant does not contend nor does the record establish that the service-connected hearing loss played any role in the Veteran's death, as set forth in detail below. VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The Board also finds that a VA medical opinion is not required to determine whether a service-connected disability caused or contributed to the Veteran's death, including due to exposure to asbestos in the military, as the standards of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. McLendon states that VA must provide a medical examination in a service- connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Id., at 81. See also 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's service treatment records are negative for heart or lung disability; cardiovascular disease is not shown for many years after service; chronic obstructive pulmonary disease was diagnosed decades after service and there is no post-service competent evidence of asbestos-related lung disease; and there is no suggestion by a medical professional that the Veteran's fatal heart disease or the pneumonia that contributed to his death may be attributable to his military service - including to exposure to asbestos during his service. Thus, the standards set forth by McLendon for obtaining a medical opinion are not met. The Court has held where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Competency and Credibility The appellant, as a lay person has, not been shown to be capable of making medical conclusions, thus, her statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Thus, while the appellant is competent to report what she observes, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Thus, while the appellant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the appellant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 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")). See Barr. The issue does not involve a simple medical assessment. See Jandreau; see also Woehlaert. The appellant is not competent to provide more than simple medical observations. The appellant is not competent to provide a complex medical opinion regarding the cause of the Veteran's death. See Barr. Thus, her lay assertions are not competent or sufficient. Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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. 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. 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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). 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. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Therefore, in order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310. To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In addition, service connection may be granted for a chronic disease, including arteriosclerosis and cardiovascular-renal disease to include hypertension, if manifested to a compensable degree with one year following service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Certificate of Death reflects that the Veteran died in January 2008. The immediate cause of death was arrhythmia due to cardiomyopathy. Pneumonia was listed as a significant condition contributing to death. The service treatment records do not show complaints, findings, treatment, or diagnosis of heart or lung disease or injury. Neither heart nor lung disease was manifest during service. The separation examination revealed that the cardiovascular and respiratory systems were normal. The Veteran's blood pressure readings were 120/80 and 122/82. The Veteran was separated in February 1947. Heart disease was not manifest within one year of separation. In 1957, nearly a decade after service discharge, the records show that the Veteran was diagnosed as having hypertensive cardiovascular disease. Thereafter, private and VA medical records dated in the 2000's show that the Veteran was diagnosed as having, in pertinent part, ischemic cardiomyopathy, cardiomegaly, coronary artery disease, congestive heart failure, chronic atrial fibrillation, hypertension, and chronic obstructive pulmonary disease (COPD). The appellant contends that the Veteran had inservice asbestos exposure which led to lung disease which contributed to the Veteran's death. The record reflects that the Veteran served in combat in the U.S. Navy aboard vessels as an electrician's mate. There is no specific statutory guidance with regard to asbestos related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000). The RO has essentially stated that since service records show that the Veteran was an electrician's mate in service in the Navy during World War II, his exposure to asbestos was "probable". See June 2006 rating decision denying, in pertinent part, service connection for COPD, a heart condition and high blood pressure. However, while the record indicates that the Veteran's exposure to asbestos in service was "probable", the record on appeal contains no diagnosis of fibrosis and tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of the pleura and peritoneum; cancer of the lung, gastrointestinal tract, larynx, pharynx or urogenital system; or interstitial pulmonary fibrosis (asbestosis). Further, there is no competent evidence which establishes a nexus between service and a post-service diagnosis of heart or lung disease. As noted, cardiovascular disease was initially noted nearly 10 years after the Veteran's separation from service. His lung disease (COPD) was diagnosed many decades later. There is no competent evidence linking either to service. Thus, while the Veteran served in combat and may have been exposed to asbestos during service, the causes of death, arrhythmia due to cardiomyopathy with pneumonia as a contributing condition, have not been shown by competent evidence to be etiologically related to any service including combat service and/or asbestos exposure. As noted, the Veteran's service-connected bilateral hearing loss was rated as noncompensably disabling. Prior to death, the Veteran was having considerable medical problems involving his heart and lungs. As noted, the competent medical evidence of record does not demonstrate or even suggest that these medical issues are related to service. The appellant does not contend nor does the evidence show that hearing loss played any role in the Veteran's death. There is no competent evidence to that effect. Hearing loss was not listed as a condition contributing to death on the Certificate of Death nor is it otherwise referenced as hastening death in the medical records. Thus, the Board concludes that the Veteran's service- connected hearing loss was not the immediate or underlying cause of the Veteran's death, and was not etiologically related to the cause of death. Furthermore, the fatal disease process was not manifest during service or within one year of separation. The Veteran's service-connected hearing loss did not contribute substantially or materially to cause the Veteran's death and it was not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease causing death. The appellant's assertions are unsupported by competent evidence and do not serve as a basis to allow the claim. The Board concludes that the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs