Citation Nr: 1004366 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 04-25 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from June 1946 to October 1947, September 1950 to September 1951, and March 1955 to July 1973. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2007, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In February 2008, the Board, in part, remanded the matter for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (rated as 50 percent), frostbite of the hands and feet (each rated as 10 percent), urticaria, leukoplakia of the lower lip, myositis of the right shoulder, pilonidal cystectomy, and prostatitis (each rated as 0 percent). 2. The Veteran died in March 2004 and the certificate of death lists the immediate cause of death as cardiopulmonary arrest due to pneumonia and lists diabetes, hypertension, prostate cancer, and urinary tract infection as other significant conditions contributing to death but not resulting in the underlying cause. 3. The Veteran's service-connected disabilities did not cause or contribute substantially or materially to cause his death. 4. Pneumonia was not shown in service or for many years thereafter, and there is no competent, probative evidence establishing a link between pneumonia and service. 5. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of death are not met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009), was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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 that the claimant is expected to provide. The Board notes that a "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Specific to claims for Dependency and Indemnity Compensation (DIC) benefits, to include service connection for the cause of death, VA's notice requirements 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Prior to the initial adjudication of the appellant's claim in the May 2004 rating decision, she was provided notice of the VCAA in April 2004. The VCAA letter indicated the types of information and evidence necessary to substantiate a claim for DIC benefits, including service connection for the cause of death, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The May 2004 rating decision reflects the initial adjudication of the claim after issuance of this letter. Thereafter, the appellant received additional notice in March 2008, pertaining to the downstream effective date element of her claim with subsequent readjudication in an October 2009 supplemental statement of the case. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Mayfield, 444 F.3d 1328; Pelegrini, 18 Vet. App. 112. The Board notes that the appellant was not specifically informed of the conditions for which the Veteran was service-connected at the time of his death. However, the appellant asserts that his service-connected posttraumatic stress disorder (PTSD) was a major cause of death. Thus, the Board finds that she had actual knowledge of the conditions for which the Veteran was service-connected. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Further, as the appellant has consistently asserted that the Veteran's PTSD caused or contributed to his death, the Board finds that she is not prejudiced by the omission of specific notice as to establishing service connection for the cause of the death based on a condition not yet service-connected. Accordingly, the Board finds that no prejudice to the appellant will result from the adjudication of this claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In the February 2008 remand, the Board requested, in part, that the RO obtain all mental health treatment records from the Montgomery, Alabama VA Medical Center for the period from January 2000 to November 2004 and, if any additional records are associated with the claims folder, to obtain a supplemental medical opinion. The RO associated these records in July 2009 and obtained a supplemental opinion in September 2009. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's service treatment records, VA medical opinions, and statements and testimony from the appellant and her representative. The appellant has not indicated that she has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The appellant and her representative have been accorded ample opportunity to present evidence and argument in support of her appeal, including two extensions of time. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2009). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for the cause of the death, the evidence of record 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 (West 2002); 38 C.F.R. § 3.312 (2009). Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service- connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). Analysis The appellant contends that the Veteran's service-connected PTSD was a major cause of death. The Veteran died in March 2004 and the certificate of death lists the immediate cause of death as cardiopulmonary arrest due to pneumonia and lists diabetes, hypertension, prostate cancer, and urinary tract infection as other significant conditions contributing to death but not resulting in the underlying cause. At the time of the Veteran's death, service connection was in effect for PTSD (rated as 50 percent), frostbite of the hands and feet (each rated as 10 percent), urticaria, leukoplakia of the lower lip, myositis of the right shoulder, pilonidal cystectomy, and prostatitis (each rated as 0 percent). In a May 2007 report, a VA examiner stated that, after a review of the Veteran's claims folder, the cause of his death was not related to PTSD. In a September 2009 report, another VA examiner stated that, after a review of the Veteran's claims folder, the cause of the Veteran's death was bilateral pneumonia. The examiner noted that there is no evidence that the Veteran's death had a medical connection to PTSD and there is no evidence that the Veteran's death had a medical connection to military service. Thus, the Board finds that the Veteran's service- connected PTSD did not cause or contribute substantially or materially to cause his death. Further, the appellant does not allege, and the record does not show, that any of the Veteran's other service-connected disabilities caused or contributed substantially or materially to cause his death. As regards the pneumonia that led to the Veteran's death, his service treatment records reflect no complaint, finding, or diagnosis of pneumonia; and the separation examination report reflects no indication of pneumonia. Thus, pneumonia was not shown in service. The first documentation of pneumonia appears in an April 1997 VA medical record, which indicates a history of recurrent pneumonia, including a bout in September 1996. The Board notes that this is over 20 years after the Veteran's separation from service. The passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the bout of pneumonia that led to the cardiopulmonary arrest that led to his death appears to have started in March 2004. Moreover, the appellant has not asserted that the pneumonia is related to service and there is not competent, probative evidence establishing a link between the pneumonia and service. Given the above, the Board concludes that a disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. In addition to the medical evidence, the Board has considered the assertions advanced by the appellant and her representative. While the Board does not doubt the sincerity of these assertions, unfortunately, none of this evidence provides a basis for allowance of the claim. Matters of diagnosis and etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the appellant nor her representative is shown to be other than a layperson without the appropriate medical training and expertise, they are not competent to render a probative (i.e., persuasive) opinion on a medical matter. 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"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the claim for service connection for the cause of death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of death is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs