Citation Nr: 1018554 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 09-11 860 ) 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: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1944. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the Veteran's cause of death. 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 1975 at the age of 53. The death certificate lists the immediate cause of death as congestive heart failure; the underlying causes of death were atherosclerotic heart disease and diabetes mellitus. 2. At the time of the Veteran's death, service-connection was in effect for bilateral weak foot, rated 10 percent disabling, and trichophytosis of the feet, rated as 10 percent disabling. 3. Diabetes mellitus and heart disease did not have onset during service, were first diagnosed many years after service and were not related to service or a service-connected disability. 4. A service-connected disability did not contribute substantially or materially to the cause of the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2009); 38 C.F.R. § §§ 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and to assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). Certain additional notice requirements attach in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of death. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed.Cir. May 19, 2009). Generally, 38 U.S.C.A. § 5103(a) notice for a DIC case 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. The content of the notice letter will depend upon the information provided in the claimant's application. Here, the RO sent correspondence in April 2008; a rating decision in June 2008; and a statement of the case in March 2009. Those documents discussed specific evidence, particular legal requirements applicable to the claim, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board acknowledges that the appellant was not provided with all of notice criteria required by Hupp; however, the Board concludes that the appellant has actual knowledge of the disability for which the Veteran was granted service connection and those for which he was not service-connected. The appellant contends that the Veteran had been granted service connection for diabetes mellitus type II, an underlying cause of the Veteran's death, during his lifetime. She claims that she was told over the phone by VA that service connection was in effect for this disability. However, the appellant has been informed, and the evidence shows, that the Veteran's claims file does not show that he was service-connected for diabetes mellitus type, or that his death was otherwise related to a service-connected disability or any other aspect of service. The nature of the appellant's claim reflects her actual knowledge of the disabilities for which the Veteran was granted service connection and those for which he was not service-connected. Accordingly, the failure to provide Hupp-compliant notice is not prejudicial in this case. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to the claimant's receipt of compliant notice. 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. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the March 2009 statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. While the appellant and her representative contend that the Veteran's claims file is incomplete, there is no evidence in support of this allegation and in fact the evidence supports a finding that there are no records missing from the claims file. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claim. In this case, there is no competent evidence suggesting any direct association between the Veteran's death and his military service. While the appellant has asserted a relationship between the Veteran's death and service, the appellant, as a lay person is not competent to offer an opinion on a matter requiring medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board finds that an examination is not warranted because the evidence does not include competent evidence relating the Veteran's death to any event or injury in service. Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the appellant or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of her claim, and therefore the error was harmless). Cause of Death The appellant contends that service connection for the Veteran's cause of death should be granted because his death was due to a service connected disability. Specifically, the appellant argues that service connection for diabetes mellitus, an underlying cause of the Veteran's death, was in effect at the time of the Veteran's death. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause of death. 38 U.S.C.A. § 1310. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for heart disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran died in November 1975 at the age of 53. The death certificate lists the immediate cause of death as congestive heart failure. Additionally, atherosclerotic heart disease and diabetes mellitus were noted as contributory causes of death. At the time of the Veteran's death, service-connection was in effect for bilateral weak foot, rated 10 percent disabling, and trichophytosis of the feet, rated as 10 percent disabling. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of heart disease or diabetes mellitus. After service, a medical certificate submitted in connection with the Veteran's application for nonservice-connected pension, noted diagnoses of diabetes mellitus, post- myocardial infarction with anterior and posterior severe coronary artery disease, and left ventricular aneurysm. By a rating decision in April 1971, the RO granted entitlement nonservice-connected pension due to myocardial infarction with severe coronary artery disease, rated as 60 percent disabling, as well as history of diabetes mellitus and bilateral varicosities, both rated as noncompensably disabling. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Initially the Board notes that with regards to the appellant's contention that service connection was in effect for diabetes mellitus at the time of the Veteran's death, the evidence shows that the Veteran never sought, nor was he granted, service connection for diabetes mellitus. The evidence does show that nonservice-connected pension was granted in an April 1971 rating decision, due to myocardial infarction with severe coronary artery disease, a history of diabetes mellitus and bilateral varicosities. The Board is sympathetic to the appellant, who is obviously very sincere in her believe that service connection for diabetes mellitus was granted during the Veteran's lifetime. However, having reviewed the complete record, the Board finds that the preponderance of the evidence is against finding that service connection for diabetes mellitus or heart disease was in effect at the time of the Veteran's death. Based on the available service treatment records, heart disease and diabetes mellitus were not affirmatively shown to be present during service and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. Nevertheless, service connection of the fatal conditions may still be established by continuity of symptomatology after service, or by the diagnosis of the disability after service, when all the evidence, including that pertinent to service, establishes that the fatal condition was incurred in service. After service, the first indication the Veteran had heart problems or diabetes mellitus was in 1970. The absence of documented complaints associated with the Veteran's fatal condition from 1944 to the early 1971, is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.). For this reason, the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death based on continuity of symptomatology of the fatal conditions under 38 C.F.R. § 3.303(b). Additionally, the Veteran served prior to December 31, 1946, and in any event, the record does show that after service heart disease was first documented in 1970, well beyond the one-year presumptive period for heart disease as a chronic disease following separation from service under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. As for service connection for the cause of death based on the initial documentation after service under 38 C.F.R. § 3.303(d), none of the fatal conditions is under case law a disease where lay observation has been found to be competent to establish a diagnosis and the determination as to the presence of the disability therefore is medical in nature, that is, not capable of lay observation. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Where, as here, there are questions of a medical diagnosis, not capable of lay observation, and of medical causation, that is, evidence of an association or link between the Veteran's fatal conditions and an injury, or disease in service, where a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. And there is no competent medical evidence that diabetes mellitus or heart disease had onset during service or that the fatal conditions were due to an injury, disease, or event of service origin, to include a service-connected disability. As the Board may consider only independent medical evidence to support its findings on the questions of medical diagnoses, not capable of lay observation, and of medical causation, and as the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs