Citation Nr: 1017461 Decision Date: 05/11/10 Archive Date: 05/26/10 DOCKET NO. 08-00 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is the widow of a veteran who served on active duty from December 1942 to October 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant had a hearing before the Board in October 2009 and the transcript is of record. The case was brought before the Board in January 2008 and December 2009, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the appellant in the development of her claim, to include affording her a hearing before the Board and a VA medical opinion respectively. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. 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 on January [redacted], 2007; congestive heart failure, hypertension and chronic pulmonary effusion were certified as the causes of death on his death certificate. 2. At the time of death, the Veteran was service-connected for residuals of a nephrectomy of the right kidney, rated as 30 percent disabling, and residuals of a fractured right fibula, rated as non-compensable. 3. There is no competent and probative medical evidence indicating congestive heart failure, hypertension and chronic pulmonary effusion were manifested during service or within one year after the Veteran's discharge from service, or that these conditions were due to or aggravated by any other service-connected disability. CONCLUSION OF LAW The Veteran's death was not caused or aggravated by any incident of service or any service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 and 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the appellant in March 2007 and February 2009. Those letters advised the appellant of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letters also informed the appellant of how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Court of Appeals for Veterans Claims (Court) held that in the context of a claim for DIC benefits, 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The February 2009 letter contained all the elements required in Hupp. The appellant has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this case, the appellant did receive a March 2007 letter prior to the initial denial of her claim, but notice in conformance with Hupp as described above, was not effectuated until February 2009, after the initial adjudication of her claim. The appellant still has the right to VCAA content complying notice and proper subsequent VA process, and that has been done, as discussed above. Any defect with respect to the timing of the VCAA notice requirement was harmless error. See Mayfield, supra. Although the notice provided to the appellant in 2009 was not given prior to the first adjudication of the claim, the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the claim was readjudicated and an additional SSOC was provided to the appellant in November 2010. Not only has she been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also, with regard to DIC claims, includes obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103(a). In this case, a medical opinion was obtained in January 2010 to ascertain whether the Veteran's death could be attributed to his service-connected disabilities. Further opinion is not necessary because there is no persuasive medical evidence indicating the Veteran's death could be associated with his military service or any other incident of his military service. This is explained more thoroughly below. Thus, the Board finds that VA has satisfied the duty to assist the appellant. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for cardiovascular-renal disease may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, no legal presumption is applicable because the earliest evidence of the Veteran's heart disease and hypertension are decades after service. To warrant service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). 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. See 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The regulations provide that service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributing cause of death 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 the disease primarily causing death. 38 C.F.R. § 3.312(c)(3). Moreover, there are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. A service-connected disability is not generally held to have accelerated death unless such disability affects a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Lay testimony and statements are deemed competent evidence as to a description of symptoms observed. In the absence of evidence demonstrating that he or she has medical training or expertise, a lay person is not competent to render medical findings or opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Veteran died on January [redacted], 2007 due to congestive heart failure, hypertension and pleural effusion. His service- connected disabilities include residuals of a right kidney nephrectomy (rated 30 percent disabling) and residuals of a right fibia fracture (rated non-compensably). The appellant contends that the Veteran's cause of death is related to his service-connected right kidney removal. She claims that his heart disease, hypertension and respiratory conditions were caused by or aggravated by the fact that he only had one kidney. Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). The Board finds noteworthy that prior to his death, the Veteran initiated claims of entitlement to service connection for his heart disease and pulmonary disease, claimed as secondary to his service-connected nephrectomy. The appellant continued these claims after his death for accrued benefits purposes and her claim was denied by a December 2009 Board decision finding no competent and medical evidence linking the Veteran's heart disease and pulmonary disease to his nephrectomy or any other incident of his military service. Rather, private treatment records routinely linked the Veteran's heart and pulmonary diseases to post-military exposure to asbestos, a 30 plus history of smoking and age. Pertinent medical history also includes diagnoses of asbestosis, lung cancer, stroke and obstructive sleep apnea. Despite not being service-connected disabilities, the appellant still believes the Veteran's in-service kidney removal contributed to his death. In support of her claim, the appellant identified treatment records from private physician Dr. Singh. The Veteran was examined on January [redacted], 2007, one day prior to his death. At that time, Dr. Singh diagnosed the Veteran with chronic kidney disease stage II secondary to nephrosclerosis of hypertension and aging. Also noted was the Veteran's 1945 nephrectomy causing some functional renal mass loss. The doctor further indicated, however, that despite the loss, the Veteran only had "mild renal insufficiency suggesting compensation by his remaining kidney." Although the Veteran was not service-connected for any disease of the left kidney, given the nature of the Veteran's service-connected disability, the Board previously remanded this claim to obtain a medical opinion as to whether the Veteran's cardiovascular-renal disease, to include hypertension, or pulmonary diseases were caused or aggravated by the fact that the Veteran lived his entire post-service life with only on remaining kidney. A VA medical opinion was provided in January 2010 where the examiner concluded that whether the Veteran's left kidney disease was caused by the right kidney removal decades earlier (which could not be resolved without resorting to mere speculation), "the Veteran's causes of death...are less likely as not (less than 50/50 probability) caused by or a result of his service-connected nephrectomy or any incident of service." The examiner further explained that even though it cannot be reconciled without resorting to speculation whether the Veteran's nephrectomy contributed to his chronic left kidney disease, the objective records "do not support that the chronic kidney disease caused his death...." The examiner also found compelling that the Veteran had a serious post-service motor vehicle accident (MVA) in 1999 requiring ventilator support and extensive hospitalization and rehabilitation. His post-service medical history included aortic stenosis, status-post aortic valve replacement with post cardiomyotomy syndrome and recurrent pleural effusion, reported asbestosis, chronic obstructive pulmonary disease, sleep apnea, atrial fibrillation, arthritis and seizure disorder. In short, the examiner could not find any objective evidence that the Veteran's right nephrectomy resulted in his chronic health problems listed above or his death. The Board finds the examiner's medical opinion persuasive. It is based on a complete review of the claims folder and a review of pertinent medical literature. Although the examiner could not reconcile whether the Veteran's right nephrectomy later caused left kidney disease, the examiner ultimately opined that regardless of etiology, the Veteran's left kidney disease and right nephrectomy simply could not objectively be tied to the Veteran's death. Again, the Board previously considered whether the Veteran's heart disease, to include hypertension, and pulmonary disease could be associated with his military service directly or secondary to his right kidney nephrectomy. These claims were denied in a December 2009 Board decision finding the objective evidence simply did not show any etiological connection between the Veteran's cardiovascular and pulmonary diseases and his military service, to include his in-service nephrectomy. Again, the Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of heart disease, hypertension or pleural effusion. The Veteran was not treated for any of these disabilities until decades after service. At that time, private treatment records associate the Veteran's heart and respiratory diseases with post-military occupation (on a railroad) exposure to asbestos, a 30 plus year history of smoking, and age. As stated above, the January 2010 VA examiner further detailed the voluminous list of health problems suffered by the Veteran prior to his death and could find no objective evidence linking these conditions to his in-service nephrectomy or any other incident of his military service. In short, no medical professional has ever opined that the Veteran's demise was due to or aggravated by any incident of service or service-connected disability. Indeed, there is medical evidence to the contrary. While the Board sympathizes with the appellant and has considered her sincere belief that the Veteran's death was related to his in-service right kidney nephrectomy, she is a lay person and has not demonstrated she possesses the medical knowledge or training to render an opinion as to the cause or etiology of any current disorder. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, the most probative and competent evidence indicates the Veteran's cause of death is unrelated to any incident of his military service or any service-connected disability and, therefore, the claim must be denied. ORDER Entitlement to service connection for the Veteran's cause of death is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs