Citation Nr: 1008563 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-28 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran had active service from November 1959 to January 1970. He died in November 2007. The appellant is his widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) in Denver, Colorado, which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The Board notes that in the appellant's substantive appeal, she asserted that the care the Veteran received from the VA essentially caused his death. Her assertions were construed in a liberal manner and she was asked by the VA if her intention was to file a claim under 38 U.S.C.A. § 1151 (West 2002) in an October 2009 Supplemental Statement of the Case (SSOC). See 38 C.F.R. §§ 20.201, 20.302 (2009). In response, although the appellant submitted a statement with a list of medications and hospitals, she did not indicate that she wanted to pursue an 1151 claim. In a January 2010 SSOC the RO noted such and added that the appellant was not competent to attribute the Veteran's treatment and blood problems to his demise. Given the aforementioned procedural development, the Board finds that no additional action is warranted. If the appellant wishes to file a claim in this regard she should contact the RO. FINDINGS OF FACT 1. The Veteran died on November [redacted], 2007; the death certificate lists the immediate cause of his death as pneumonia. No additional contributing conditions to his death were listed. 2. At the time of the Veteran's death, service connection was in effect for coronary artery disease, status post bypass, evaluated as 60 percent disabling; hypertension, evaluated as 10 percent disabling; and supraventricular tachycardia associated with coronary artery disease, evaluated as 10 percent disabling. 3. A disability which was incurred in service did not aid or lend assistance to the production of death, did not accelerate death, and did not render the Veteran materially less capable of resisting the effects of the primary cause of death. 4. The medical evidence does not demonstrate a relationship between the cause of the Veteran's death and any disability that was manifested in or was related to his period of service. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, a disability or disease incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Pertinent Law and Regulations To establish service connection for the cause of the Veteran's death, the evidence must show that 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. 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 of death. For a service-connected disability to constitute a contributory cause 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. Id. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310(a). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first 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). VA is required to consider all lay and medical evidence of record; when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA must give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). II. Analysis The Board finds that the preponderance of the evidence is against a grant of service connection for the cause of the Veteran's death. In reaching its decision, the Board has considered all of the pertinent evidence of record, including the Veteran's service treatment records and the Veteran's death certificate. At the time of the Veteran's death, service connection was in effect for coronary artery disease, status post bypass; hypertension and supraventricular tachycardia associated with coronary artery disease. The Veteran's death certificate listed pneumonia as the cause of his death. There is no competent or credible evidence of record etiologically relating the Veteran's death to service or any event of service, or suggesting that the Veteran's service-connected disabilities aided or lent assistance to the cause of his death. A review of the Veteran's service treatment records shows no complaints or findings regarding pneumonia or a lung condition. A January 1970 examination shows the Veteran's lungs were clear. Moreover, the evidence indicates that the Veteran's pneumonia manifested shortly before his death, many years after service. The first medical evidence of this disability is days before his death when he was seen for respiratory failure of multiple etiologies including bilateral pulmonary infiltrates consistent with nosocomial pneumonia/developing adult respiratory distress syndrome. The Board also notes that even though the Veteran filed a claim for service connection for breathing problems in 1993, he also reported that he had no history of pneumonia. He reported that he had been a smoker all of his adult life. The Veteran's claims file is replete with medical reports and not one of the reports references service or suggests that the cause of his death caused or hastened his demise. The death certificate is also silent in this regard. To the extent that the appellant's application for service connection for the cause of death is itself a general contention that the pneumonia that caused his death is related to service, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, a general contention that pneumonia is related to service is an etiological question as to an internal disease process unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308- 309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). Additionally, the appellant is not competent to assert that any of the Veteran's service connected disabilities caused or lent assistance to his death. Rendering such an opinion requires medical expertise. For the foregoing reasons, the preponderance of the evidence is against a finding that the pneumonia that caused the Veteran's death is related to service or to any service- connected disability. Therefore, the appellant's claim for service connection for the cause of the Veteran's death is denied. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Duty to Notify and Assist The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. A February 2008 letter issued by the VA notified the appellant of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the appellant to submit medical evidence relating the cause of the Veteran's death to active service and noted other types of evidence the appellant could submit in support of the claim. The appellant also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the appellant be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court addressed VA's 38 U.S.C. § 5103(a) notice obligation in the context of a claim for dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1310. The Court held that, because the RO's adjudication of a DIC claim hinges first on whether a Veteran was service-connected for any condition during his or her lifetime, the § 5103(a) notice in such a claim must include, inter alia, a statement of the conditions (if any) for which the Veteran was service-connected at the time of his death. Hupp, 21 Vet. App. at 352-53. In this case, the appellant did not receive notice compliant with Hupp. However, the appellant showed constructive notice, as after she filed her claim, she submitted a copy of the notice of increase for the last rating decision issued to the Veteran in April 2007. See also November 2009 statement from the appellant. Therefore, the Board determines that the appellant is not prejudiced, because she had constructive notice of the Veteran's service-connected disabilities and ratings. The failure to satisfy the duty to notify in that regard is not prejudicial. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Because the appellant's claim is denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the appellant. See Dingess, 19 Vet. App. at 473. 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, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the appellant in obtaining evidence and affording her the opportunity to give testimony before the RO and the Board, although she declined to do so. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the appellant has not contended otherwise. The Board is also cognizant of the mandates of McClendon v. Nicholson, 20 Vet. App. 79 (2006) and acknowledges that a medical opinion was not obtained in this case. However, such additional development is not required. There is absolutely no evidence of record suggesting that the cause of the Veteran's death is related to service or any service- connected disability. In summary, the duties to notify and to assist the appellant have been substantially complied with and no further action is necessary to meet the requirements of the VCAA. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs