Citation Nr: 1017643 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 05-18 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma 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 Amy M. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1971, including service in the Republic of Vietnam. He died in October 2003 and his surviving spouse is the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating action of the Department of Veterans Affairs Regional Office (RO) in Muskogee, Oklahoma. This appeal has been before the Board twice previously, most recently in December 2008, when it was remanded for additional development. Such development having been completed, the appeal has been returned to the Board for further review. The appellant presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in June 2008. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The cause of the Veteran's death was identified as "probable atherosclerotic cardiovascular disease" with hypertension identified as an other significant medical condition, but "not directly contributing to death." 2. At the time of his death, the Veteran was service connected for chronic lumbosacral strain with degenerative disc disease (rated as 60 percent disabling), psychophysiological gastrointestinal reaction with hyperacidity syndrome (rated as 30 percent disabling), right knee injury with chondromalacia, (rated as 10 percent disabling), tinea pedis or dyshidrotic eczema (rated as 10 percent disabling), and hypertension (rated as 10 percent disabling). 3. Atherosclerotic cardiovascular disease was not manifested in service, and has not been linked by competent evidence to service. 4. The evidence fails to show that the Veteran's service- connected disabilities, including hypertension, either caused or contributed to his death. CONCLUSION OF LAW A service-connected disease or disability was neither the principal cause, nor a contributory cause, of the Veteran's death. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.312, 3.313 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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). Here, the foregoing notice requirements were partially satisfied by a May 2006 letter, which informed the appellant of the information required to substantiate a DIC claim based on a previously service-connected condition. Although that letter was issued after the August 2004 rating decision on appeal, and did not include the conditions for which the Veteran was service-connected at the time of his death, or an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected, the Board finds that the appellant has not been prejudiced by these notice errors. Specifically, the appellant testified at a Travel Board hearing, where her testimony demonstrated her actual knowledge of the Veteran's service-connected conditions, and of the evidence necessary to substantiate a DIC claim based on a condition not yet service connected. Further, there has been no suggestion that there is any prejudice due to a lack of proper VA notice, and the appellant is represented by an organization that is intimately familiar with her case and what is necessary to substantiate her claim on appeal in this case. Therefore, the Board is confident that any notice deficiencies do not affect the essential fairness of the adjudication, and the presumption of prejudice is rebutted. Also, to whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as assigning a disability rating or effective date, the Board finds no prejudice to the appellant in proceeding with the present decision. As will be discussed in the following decision, the Board is denying the appellant's claim. As such, no ratings or effective dates will be assigned. Additionally, the Board finds that the duty to assist provisions of the VCAA have been met in this case. All obtainable evidence adequately identified by the appellant has been obtained and associated with the claims file. Neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Standard Of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). The issue involved will be determined by the exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. See Id. It is noted that at the time of his death, the Veteran was service connected for chronic lumbosacral strain with degenerative disc disease (rated as 60 percent disabling), psychophysiological gastrointestinal reaction with hyperacidity syndrome (rated as 30 percent disabling), right knee injury with chondromalacia, (rated as 10 percent disabling), tinea pedis or dyshidrotic eczema (rated as 10 percent disabling), and hypertension (rated as 10 percent disabling). By a December 2002 rating action, the Veteran was awarded a total disability rating based on individual unemployability (TDIU) for these disabilities, effective from October 2002. The Veteran died in October 2003; and an amended death certificate, dated May 2008, indicates "probable atherosclerotic cardiovascular disease" as the immediate cause of death, with Hypertension identified under "other significant medical conditions (not directly contributing to death)." The appellant essentially contends that the Veteran's service-connected hypertension substantially contributed to his atherosclerotic cardiovascular disease. Alternatively, she asserts that the various medications he was taking for his service-connected disabilities contributed to his atherosclerotic cardiovascular disease (see December 2003 DIC claim). In this regard, the Board notes that, here, the appellant is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, her opinion is insufficient to link the Veteran's death to his service- connected conditions. The Veteran had honorable service in the United States military during theVietnam Era, and there is no doubt that the disabilities which he developed as a result of service for his country were serious and that they impacted his quality of life. However, the medical evidence of record simply fails to show that the Veteran's hypertension, (or any other disability linked to service) either caused, or contributed to, his death. Importantly, the Board notes that both private and VA treatment records dated during the year leading up to the Veteran's death are essentially silent for any complaints or treatment for his service-connected hypertension , and show the disability was well-controlled with medication. (Hypertension was specifically noted as not directly contributing to death on the amended death certificate.) Further, while VA records do reflect a complaint of chest pain in August 2002, cardiac workup at that time revealed normal findings. Likewise, there is no competent/credible evidence of atherosclerotic cardiovascular disease was present in service or in the first post service year. Simply put, there is no medical indication that atherosclerotic cardiovascular disease, the disorder identified as the cause of the Veteran's death, stemmed from the Veteran's service-connected conditions or his time in service. Additionally, the Board finds the appellant's argument that the Veteran's medications for his service-connected disabilities contributed to his atherosclerotic cardiovascular disease unpersuasive. While VA treatment records reflect a substantial list of medications, the record is entirely absent for any medical evidence suggesting that the Veteran's medications contributed to his death. As such, the criteria for service connection for the cause of the Veteran's death have not been met, and the appellant's claim is therefore denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs