Citation Nr: 1017166 Decision Date: 05/10/10 Archive Date: 05/26/10 DOCKET NO. 06-36 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona 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 WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Jon Schulman, Associate Counsel INTRODUCTION The Veteran had active service from July 1947 to June 1950, from July 1950 to July 1956, and from September 1962 to November 1967. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. 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. The Veteran died in November 2005. The immediate cause of death was respiratory failure/hypoxemia due to severe chronic obstructive pulmonary disease (COPD). 2. At the time of the Veteran's death, service connection was in effect for arteriosclerosis, status post-myocardial infarction. 3. A pulmonary disorder, including respiratory failure/hypoxemia or COPD, was not manifested in service and is not related to service. 4. A service-connected disability did not cause or contribute to the cause of the Veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of death of the Veteran. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 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 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, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)- compliant notice. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (holding that where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of letters sent to the appellant in January and May 2006 which fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate the claim and of the division of responsibility between VA and a claimant in developing an appeal. Therefore, the appellant was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Furthermore, the claim was readjudicated in a Supplemental Statement of the Case issued in February 2010. Neither the appellant nor her representative have indicated any prejudice caused by this timing error, and the Board finds no basis for finding prejudice against the appellant's appeal of the issue adjudicated in this decision. See Shinseki v. Sanders, 129, S. Ct. 1696, 2009 WL 1045952 (U.S. 2009). Based on the foregoing, the Board finds that adequate notice was provided to the appellant which complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) prior to the transfer and certification of her case to the Board. Next, VA has a duty to assist the appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a appellant's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for a pulmonary disorder. Moreover, the post-service evidence does not indicate any complaints or treatment referable to a pulmonary disorder until many years following separation. Furthermore, the weight of the competent evidence does not indicate a relationship between the cause of the Veteran's death and active service. The Board notes that the appellant has testified to her belief that the Veteran's cause of death was related to either a heart disorder or to cancer. There is no medical evidence that indicates a heart disorder or cancer was contributory in the Veteran's death, however. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See, Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the appellant's statements in support of the claim are also of record, including testimony provided at an April 2009 hearing before a Decision Review Officer (DRO). The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal and Factual Background and Analysis The appellant contends that a service-connected disability caused the Veteran's death. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In cases of service connection for the cause of death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service-connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2009). The service- connected disability will be considered 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) (2009). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. Even in such cases, 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) (2009). The Veteran's service treatment records indicate that, in April 1964, he experienced chest pains. On consultation, however, his lungs were clear. On examinations in June 1952, March 1953, December 1954, July 1956, and September 1956, the Veteran's chest and lungs were normal. On reports of medical history in December 1954 and September 1956, the Veteran reported no history of shortness of breath. On report of medical history in April 1967, the Veteran reported a history of pain or pressure in his chest, but affirmatively denied any history of shortness of breath or asthma. Upon examination in April 1967, the Veteran's lungs and chest were normal, although one episode of chest pain was reported to have occurred in 1964. Based on the foregoing, the service treatment records show no complaints of a pulmonary disorder and chronic pulmonary disorder was incurred during active duty. This does not in itself preclude a grant of service connection, however. Again, service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2009). Nevertheless, a review of the post-service evidence leads to the conclusion that the terminal causes of death are not related to active service, for the reasons discussed below. Following retirement from active service in November 1967, the Veteran underwent a VA examination in April 1968. A review of imaging showed intact osseous structures, hilar structures of equal density and no active infiltrations. The costophrenic sulci were clear and the impression was of "negative chest." The respiratory system was described as "essentially normal" In 1997, a private treatment record indicated that the Veteran was diagnosed as having COPD. On VA examination in November 1998, the Veteran reported that he did not recall any episodes of shortness of breath, chest pain, or weakness. He indicated that four years prior he had been told that he had emphysema. Lungs showed good expansion and aeration, no rhonchi, rales or wheezing. In September 2004, the Veteran was diagnosed as having carcinoma of the lung and an internal Groshong catheter with MRI port was inserted to facilitate chemotherapy. In March 2005, he underwent mediastinoscopy. At that time, it was noted that the Veteran had a history of COPD, obstructive sleep apnea, and used a continuous positive airway pressure (CPAP) device. He also had some right upper lobe collapse of his right lung secondary to radiation and chemotherapy. In October 2005, the Veteran was admitted for hospital treatment, under the care of Dr. R.G.M., following complaints of a three week history of general upper body weakness. He denied any chest pain, discomfort, or change in his shortness of breath. He also denied coughing and wheezing. One day after admission, the Veteran underwent lung imaging which showed no evidence of significant mediastinal adenopathy. There were bilateral pleural effusions and atelectasis seen in the right upper lobe. Mild emphysematous changes were noted in both lungs and a small pleural based nodular density was seen, measuring approximately six to seven millimeters in diameter, but was stated to be not significantly changed when compared to a prior study. The impressions were bilateral pleural effusions, pericardial effusions, and volume loss and atelectasis on the right. Three days after admission in October 2005, the Veteran underwent cardiac catheterization by Dr. R.G.M. The postoperative impression was of coronary artery disease. In November 2005 Dr. R.G.M. spoke with the Veteran regarding worsening pneumonia and the Veteran asked to be discharged home. He subsequently was discharged with a primary diagnosis of shortness of breath, a secondary diagnosis of unspecific lung cancer, and a tertiary diagnosis of conjunctivitis. A note from that same day indicates that the Veteran was a "known terminal lung cancer patient" and was experiencing mild respiratory distress. Three days after discharge from the hospital, the Veteran died at his home. The certificate of death indicated that primary cause of death was respiratory failure/hypoxemia due to or a consequence of severe COPD. The certificate of death was signed by Dr. R.G.M. The Board finds that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death. The terminal causes of the Veteran's death (respiratory failure, hypoxemia, and COPD) were not noted in service. In fact, on separation from active service, the Veteran's lungs were clear and he reported no history of shortness of breath. Rather, the first evidence of symptomatology associated with these disorders is in 1994 (several decades after service separation) when the Veteran reported having been diagnosed as having emphysema. It was not until March 2005 that the record first reveals evidence of one of the terminal diseases, namely COPD. There is no evidence indicating that the Veteran's COPD was related to service prior to his death. In her hearing before a DRO, the appellant averred that the cause of the Veteran's death was either a documented in- service possible silent myocardial infarction or lung cancer. The Board notes that, at the time of his death, service connection was in effect for a myocardial infarction. There is no medical evidence linking the Veteran's in-service myocardial infarction to his death, however. In reaching the above conclusions, the Board acknowledges Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), in which 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. The appellant has not shown that he has the expertise required to diagnose any of the causes of the Veteran's death. Nor is the appellant competent to offer an opinion regarding any causal relationship between the causes of the Veteran's death and active service. Again, there is no documentation of any findings with respect to any of the causes of the Veteran's death in service. While the appellant's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record showing no nexus between the causes of the Veteran's death and active service. With regard to the appellant's assertion that lung cancer caused the Veteran's death, the Board recognizes that the Veteran was diagnosed as having lung cancer prior to his death. Again, the appellant has not shown that has the expertise to relate the Veteran's lung cancer to his death. Id. Rather, the Board assigns greater probative weight to the Veteran's certificate of death signed by Dr. R.G.M., the same physician who had been the Veteran's primary treating physician in the two weeks prior to his death. Dr. R.G.M. clearly had knowledge of the Veteran's history of lung cancer yet did not identify this as one of the causes of the Veteran's death. Given his history of treating the Veteran just prior to his death, the Board finds Dr. R.G.M.'s opinion contained in the death certificate concerning to be of greater probative value than the appellant's assertions in determining the causes of the Veteran's death. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs