Citation Nr: 1000100 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-01 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served from July 1951 to August 1954. The appellant seeks surviving spouse benefits. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) that denied the appellant's claims for service connection for the cause of the Veteran's death and for DIC pursuant to the provisions of 38 U.S.C.A. § 1318. In a December 2006 statement, the appellant requested a Travel Board hearing at the RO. However, in a subsequent statement received in January 2007, she indicated that she could not travel to the RO and therefore no longer wanted a Travel Board hearing. Accordingly, the appellant's request for a hearing is considered to be withdrawn. 38 C.F.R. § 20.704(e) (2009). Additionally, the Board recognizes that, following the certification of the appeal in March 2007, the appellant submitted additional lay statements in support of her claims. That additional evidence, received in December 2007 and February 2009, was not accompanied by a waiver of RO consideration. Nevertheless, the Board finds that, because the newly submitted lay statements are cumulative of evidence already in the claims folder, those additional submissions do not constitute additional pertinent evidence. Therefore, remand to the RO is unnecessary. 38 C.F.R. § 20.1304 (2009). FINDINGS OF FACT 1. The Veteran died on December [redacted], 2005, from pneumonia, chronic obstructive pulmonary disease (COPD), and stenotrophomonas bacteremia. Klebsiella, pseudomonas, splenic infarct, and a urinary tract infection were noted as contributory causes of death. The Veteran was not service connected for any of those conditions, and the evidence of record does not show that they were incurred in service or manifested to a compensable degree within one year following the Veteran's separation from service. Nor are they related to the Veteran's posttraumatic stress disorder (PTSD), the only disability for which he was service connected during his lifetime. 2. The Veteran was not rated as totally disabled as a result of a service-connected disability for 10 continuous years immediately preceding his death, nor was he a former prisoner of war who died after September 30, 1999. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2009). 2. The criteria for DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for the Cause of the Veteran's Death Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2009). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2009). 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 C.F.R. § 3.312(c) (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2009); 38 C.F.R. § 3.303 (2009). No compensation shall be paid, however, if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West 2009). Service connection may be granted on a presumptive basis for certain chronic diseases, including bronchiectasis and cardiovascular-renal disease, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). However, COPD, pneumonia, stentrophomonas bacteremia, and klebsiella, are not conditions for which service connection may be granted on a presumptive basis. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2009). Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301 (2009). Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3) (2009). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3) (2009). The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a Veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service- connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2009). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice- connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 309, 314 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310. Here, the appellant in essence contends that the Veteran's PTSD and related symptoms, in particular his abuse of alcohol, materially contributed to his death. The Veteran died on December [redacted], 2005. A December 2005 death certificate listed his immediate causes of death as pneumonia, COPD, and stenotrophomonas bacteremia. Additionally, a urinary tract infection, klebsiella, pseudomonas, and splenic infarct were noted as contributory causes of death. At the time of his death, the Veteran was service-connected for PTSD, rated as 50 percent disabling, effective December 12, 1973, and as 70 percent disabling, effective October 8, 1998 . He also was in receipt of a grant of total disability based upon unemployability (TDIU), effective October 8, 1998. Significantly, the Veteran was not service connected for pneumonia, COPD, splenic infarct, or any urinary tract or bacterial infections, including klebsiella or pseudomonas. The record before the Board contains service medical records, post-service medical records, and written statements from the Veteran and the appellant. That evidence will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the Veteran's cause of death. The Veteran's service medical records are void of any complaints, diagnoses, or treatment related to respiratory or kidney problems or bacterial infections. Those records indicate that in August 1954, the Veteran was treated for complaints of nausea and vomiting and diagnosed with food poisoning. Later that month, he underwent a chest X-ray that was negative for any cardiovascular or pulmonary abnormalities. On examination prior to his separation from service in August 1954, the Veteran did not complain, nor did the clinical evaluation reveal, any symptoms related to pneumonia, COPD, stenotrophomonas bacteremia, pseudomonas, klebsiella, splenic infarct, or urinary tract infections. The Veteran's post-service VA medical records indicate that in May 1977 and April 1979 he underwent chest X-rays, which revealed clear lungs and a normal-sized heart. However, subsequent VA medical records reflect that in the late 1980s the Veteran developed emphysema, which was attributed to his smoking habit and ultimately led him to retire from his jobs as a truck driver and garbage collector. VA medical records dated in December 1991 and January 1992 reflect complaints of wheezing and shortness of breath, which were attributed to a diagnosis of COPD. In February 1992, the Veteran underwent pulmonary function testing, which revealed a severe obstructive ventilatory defect for which he was prescribed inhalers. The following April, he was treated for complaints of wheezing and diagnosed with severe reversible obstructive lung disease. It was noted that the Veteran was "doing well" on inhaler therapy. However, subsequent VA medical records show that, beginning in January 1995, he required ongoing treatment for severe COPD and related symptoms, including a chronic cough productive of white sputum, wheezing, and hoarseness. He also was treated periodically for urinary tract infections. Additionally, the Board observes that, beginning in the mid- 1970s, the Veteran was afforded psychiatric treatment for "combat fatigue," which was later diagnosed as PTSD. He received ongoing therapy and medication for that disorder and related symptoms. The Veteran also was treated for chronic alcohol abuse. During a VA psychiatric assessment conducted in August 1998, he stated that his heavy drinking "help[ed] him cope with his [PTSD] symptoms of nightmares and sleep disturbance, and also help[ed] him to deaden the pain and stop the memories." Additionally, the Veteran reported that, in the mid-1960s, he had attempted suicide while intoxicated and incurred a self-inflicted bullet wound to the chest, which "fortunately did little damage." Significantly, none of the Veteran's VA treating providers related his service-connected PTSD or any of its associated manifestations, including the residuals of a chest wound incurred during his reported suicide attempt, to his respiratory and urinary tract problems. Nor did any of those treating providers opine that the Veteran's PTSD was responsible for his abuse of alcohol. Furthermore, while the Veteran himself reported that he had been told to "stop or decrease his drinking for health reasons," there is no clinical evidence of record relating his alcohol abuse to any of the conditions listed on his death certificate. The record thereafter shows that in June 2005, the Veteran was admitted to a VA Medical Center for severe COPD and coronary artery disease. He was treated for those respiratory and heart ailments over the next several months. During that period, the Veteran also was diagnosed with and treated for multiple bacterial infections. Despite aggressive inpatient treatment, however, the Veteran's overall health deteriorated and he regrettably passed away on December [redacted], 2005. The Veteran's service medical records are negative for any findings of pneumonia, COPD, stenotrophomonas bacteremia, pseudomonas, klebsiella, splenic infarct, or urinary tract infections. Nor is there evidence of bronchiectasis, cardiovascular-renal disease, or related symptoms within one year of separation from active duty. Service connection for cause of death on a presumptive basis is therefore not warranted. Moreover, the first evidence of treatment for emphysema, the condition that clinically preceded the Veteran's COPD, which, in tandem with other respiratory and kidney problems and bacterial infections, resulted in his death, is dated in the late 1980s, more than 30 years after his discharge from service. In view of the lengthy period without evidence of treatment, there is no evidence of a continuity of treatment, which weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). As there is no evidence of respiratory or kidney problems or bacterial infections either in service or for several years after, the Board finds that an opinion regarding the etiology of the Veteran's cause of death need not be obtained in this case because there is no event or injury in service that is shown to be related to those nonservice-connected diseases. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2009). Here, there is no probative or competent evidence relating the Veteran's death to his period of active service. Accordingly, the Board finds that service connection is not warranted on a direct basis. Nor is service connection warranted on a secondary basis. The Board acknowledges that, in the decades leading up to his death, the Veteran was treated for PTSD, a disorder for which he was granted service connection, and that he reportedly incurred a bullet wound to the chest after attempting suicide in the 1960s. However, the Veteran expressly indicated that he did not incur any long-term complications from his suicide attempt. Moreover, there are no lay statements from the Veteran or the appellant, or any clinical evidence of record, indicating that incident contributed to the respiratory and other health problems that resulted in his death. Nor does the clinical evidence otherwise suggest that any of the Veteran's PTSD symptoms contributed to his death. The Board recognizes that the appellant has related the Veteran's death to his service-connected PTSD and associated symptoms. However, while the appellant herself is competent to testify that the Veteran had suffered for many years from emotional problems, she is not competent, as a layperson without medical expertise, to provide a diagnosis, opine as to medical etiology, or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Washington v. Nicholson, 19 Vet. App. 362 (2005). Additionally, the Board is cognizant that, at his August 1998 VA psychological assessment, the Veteran indicated that his heavy drinking had impaired his overall health, and that the appellant has since cited alcohol abuse as factor in his death. However, as lay persons, neither the Veteran nor the appellant is competent to attribute his alcohol abuse as a principal or a contributory cause of his death. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Washington v. Nicholson, 19 Vet. App. 362 (2005). Even if they were competent in this regard, however, the Board would not find such a relationship to constitute a sufficient basis for awarding service connection. Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). Thus, even assuming a causal relationship between the Veteran's reported alcohol abuse and his fatal pneumonia, COPD, stenotrophomonas bacteremia, pseudomonas, klebsiella, splenic infarct, and urinary tract infection, service connection for his cause of death on such grounds is barred as a matter of law, as alcohol abuse would amount to willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The Board acknowledges that service connection for a disability resulting from drug abuse may be warranted where such abuse is secondary to, or as a symptom of, a service- connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Veteran indicated at his August 1998 psychological assessment that he used alcohol to cope with the nightmares and sleep disturbances that accompanied his PTSD. However, while the VA psychologist noted the Veteran's account of a correlation between his drinking and PTSD in the August 1998 assessment report, that psychologist did not specifically relate the Veteran's service-connected psychiatric disability to his history of alcohol abuse. Nor has any other private or VA medical provider. The Board is not bound to accept medical opinions that are based on history supplied by the Veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). The August 1998 VA psychologist's transcription of the Veteran's subjective history of alcohol abuse caused by PTSD, unenhanced by additional medical comment, does not constitute competent medical evidence merely because the transcriber happens to be a medical professional. Howell v. Nicholson, 19 Vet. App. 535 (2006); LeShore v. Brown, 8 Vet. App. 406 (1995). Thus, that psychologist's report does not provide competent medical evidence that the Veteran's alcohol abuse was secondary to, or as a symptom of, his service-connected PTSD. In sum, the preponderance of the evidence demonstrates that the Veteran's fatal pneumonia, COPD, stenotrophomonas bacteremia, klebsiella, pseudomonas, splenic infarct, and urinary tract infection all developed many years after service, and were not caused by any incident of service. There is no competent medical evidence which relates the Veteran's cause of death to his service-connected PTSD, or any other aspect of his military service. Thus, there is no basis for service connection for the cause of the Veteran's death. As the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318 Where a Veteran's death is not determined to be service- connected, a surviving spouse may still be entitled to benefits. Benefits are payable to the surviving spouse of a "deceased Veteran" in the same manner as if the death were service-connected. 38 U.S.C.A. § 1318(a) (West 2009). A deceased Veteran for purposes of this provision is a Veteran who dies not as the result of the Veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the Veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of the Veteran's separation from service. The total rating may be schedular or based on unemployability. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22 (2009); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). Here, the Veteran was service connected for PTSD, rated as 50 percent disabling, effective December [redacted], 1973, and as 70 percent disabling, effective October 8, 1998. He also had been granted a TDIU rating, effective October 8, 1998. However, the Veteran did not have a service-connected disability that was continuously rated totally disabling for 10 or more years immediately preceding death. Nor did he have any disability that was continuously rated totally disabling for at least five years from the date of his separation from service. Accordingly, the Board finds that the totally disabling requirement under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 has not been met. Additionally, the Veteran was not a former prisoner of war who died after September 30, 1999. Therefore, the appellant's claim under 38 U.S.C.A. § 1318 must be denied for lack of legal merit or entitlement under the law. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). As a final point, the Board notes that in reaching this determination, it is sympathetic to the appellant's claims and does not wish in any way to diminish the Veteran's combat-decorated service. The Board, however, is precluded from reaching its own unsubstantiated medical conclusions, and is instead bound on these matters by the medical evidence of record. Smith v. Brown, 8 Vet. App. 546 (1996); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2009). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Certain additional notice requirements attach in the context of a claim for DIC benefits based on service connection for the cause of death. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed.Cir. May 19, 2009). Generally, 38 U.S.C.A. § 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 notice letter will depend upon the information provided in the claimant's application. Here, the RO sent correspondence in March 2006 and a rating decision in May 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board acknowledges that the appellant was not provided with all of notice criteria required by Hupp; however, the Board concludes that the appellant has actual knowledge of the disability for which the Veteran was granted service connection and those for which he was not service-connected. The appellant contends that the Veteran's death was related to his service-connected PTSD and associated symptoms. However, she does not assert that the Veteran was service connected for any of the conditions listed on his December 2005 death certificate, i.e., COPD, stenotrophomonas bacteremia, klebsiella, pseudomonas, splenic infarct, and a urinary tract infection. Nor does she claim that the Veteran's death was otherwise related to a service-connected disability or to any other aspect of his military service. The nature of the appellant's claim reflects her actual knowledge of the disability for which the Veteran was granted service connection and the conditions for which he was not service-connected. Accordingly, the failure to provide Hupp- compliant notice is not prejudicial in this case. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2006 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs