Citation Nr: 1032887	
Decision Date: 09/01/10    Archive Date: 09/13/10

DOCKET NO.  08-24 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to service connection for the cause of the Veteran's 
death.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel




INTRODUCTION

The Veteran had active military service from July 1998 to October 
1999.  He died in April 2006.  The Appellant is bringing the 
claim on behalf of the Veteran's surviving child.  

This matter comes before the Board of Veterans' Appeals (Board) 
from a July 2007 rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which 
denied the Appellant's claim for service connection for the cause 
of the Veteran's death.


FINDINGS OF FACT

1.  According to the death certificate, the Veteran died in April 
2006 at the age of 27 years as a result of a probable myocardial 
infarction.  Bipolar disorder was listed as a significant 
condition.  The Veteran's history of drug abuse was also listed 
on the death certificate.

2.  At the time of the Veteran's death, service connection had 
not been established for any disability.  

3.  A myocardial infarction was not present during the Veteran's 
active military duty or within one year of discharge therefrom, 
and is not associated in any way to such service.  

4.  According to VA's Chief of Behavioral Medicine, the Veteran's 
bipolar disorder/posttraumatic stress disorder (PTSD) was not a 
contributory cause of his death.

CONCLUSION OF LAW

Service connection for the cause of the Veteran's death is not 
warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103, 5103A, 
5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.303, 3.307, 3.309, 3.312 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION
      
In the interest of clarity, the Board will initially discuss 
whether the claim has been properly developed for appellate 
review.  The Board will then address the claim on its merits, 
providing relevant VA case law, regulations and statutory 
provisions, the relevant factual background, and an analysis of 
its decision.

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has 
duties 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); 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 obtain and assist the 
claimant in obtaining; and (3) that the claimant is expected to 
provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 
Vet. App. 370, 373-74 (2002).  

In this case, letters satisfying the notice requirements of 
38 C.F.R. § 3.159(b)(1) were sent to the Appellant in October 
2006, January 2007, June 2007, February 2008, August 2008, and 
October 2008.  The letters informed the Appellant of the evidence 
required to substantiate the claim and of the respective 
responsibilities in obtaining supporting evidence.  

Additionally, the October 2006 and January 2007 letters complied 
with the decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 
(2007), wherein it was held that for DIC benefits - including 
claims for cause of death, VCAA 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 the 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 RO issued the October 2006, January 2007, and June 2007 VCAA 
notice letters prior to initially adjudicating the Appellant's 
claim in July 2007, the preferred sequence.  Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II).  And since 
providing the additional VCAA notice in February 2008, August 
2008, and October 2008, the RO has readjudicated the claim in the 
May 2008 statement of the case (SOC) and in the February 2009 
supplemental SOC (SSOC) - including considering additional 
evidence received in response to that additional notice and since 
the initial rating decision at issue.  This is important to point 
out because if there was no VCAA notice provided prior to the 
initial adjudication of the claim, or for whatever reason the 
notice provided was inadequate or incomplete, this timing error 
may be effectively "cured" by providing any necessary notice 
and then going back and readjudicating the claim, including in a 
SOC or SSOC, such that the intended purpose of the notice is not 
frustrated and the Appellant is given ample opportunity to 
participate effectively in the adjudication of his claim.  In 
other words, this timing error in the provision of the notice is 
ultimately inconsequential and, therefore, at most 
nonprejudicial, i.e., harmless error. 
VA also fulfilled its duty to assist the Appellant by obtaining 
all relevant evidence in support of his claim that is obtainable, 
and therefore appellate review may proceed without prejudicing 
him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. 
Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's 
service treatment records (STRs) and VA treatment records.  In 
addition, the RO arranged for a VA medical opinion concerning the 
cause of the Veteran's death - and in particular, whether it was 
related to his military service.  See McLendon v. Nicholson, 20 
Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. 
§ 3.159(c)(4).  

Service Connection for the Cause of the Veteran's Death

According to applicable laws and regulations, service connection 
for the cause of a Veteran's death requires evidence that a 
service-connected disability was the principal or contributory 
cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  A 
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).  A service-connected disability will be considered a 
contributory cause of death when such disability contributed 
substantially, or combined to cause death--e.g., when a causal 
(not just a casual) connection is shown.  38 C.F.R. § 3.312(c).  

Generally, minor service-connected disabilities, particularly 
those of a static nature or those not materially affecting a 
vital organ (e.g., those disabilities affecting muscular or 
skeletal functions), are not held to have contributed to a death 
that is primarily due to unrelated disability.  Service-connected 
diseases or injuries affecting vital organs should receive 
careful consideration as a contributory cause of death, the 
primary cause being unrelated, 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 other diseases or injury 
primarily causing death.  38 C.F.R. § 3.312(c)(2), (3).  

There are primary causes of death that by their very nature are 
so overwhelming that eventual death can be anticipated 
irrespective of coexisting conditions, but, even in such cases, 
there is for consideration whether 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)(4).  

Service connection may be granted for a disorder resulting from 
disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110.  Service connection may 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).  

Cardiovascular disease will be presumed to have been incurred in 
service if manifested to a compensable degree of at least 10-
percent disabling within one year after service.  This 
presumption, however, is rebuttable by probative evidence to the 
contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 
3.309.
Direct service connection generally requires evidence of a 
current disorder with a relationship or connection to an injury 
or disease or some other manifestation of the disorder during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  A 
disorder may be service connected if the evidence of record 
reveals that the Veteran had a disorder that was chronic in 
service or, if not chronic, that was seen in service with 
continuity of symptomatology demonstrated subsequent to service.  
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 
(1997).  Evidence that relates the current disorder to service 
must be medical unless it relates to a disorder that may be 
competently demonstrated by lay observation.  Savage, 10 Vet. 
App. at 495-97.  For the showing of chronic disease in service, 
there is a required 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."  
38 C.F.R. § 3.303(b).  

Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence to 
the effect that the claim is plausible; lay assertions of medical 
status do not constitute competent medical evidence.  Grottveit 
v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 
Vet. App. 492, 494 (1992).  When there is an approximate balance 
of positive and negative evidence regarding any issue material to 
the determination, the benefit of the doubt is afforded the 
claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

A layperson is generally incapable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 
186 (1997).  See also Bostain v. West, 11 Vet. App. 124, 127 
(1998) citing Espiritu, 2 Vet. App. 494 (a layperson without the 
appropriate medical training and expertise is not competent to 
provide a probative opinion on a medical matter, to include a 
diagnosis of a specific disorder and a determination of the 
origins of a specific disorder).  

Lay testimony is competent, however, to establish the presence of 
observable symptomatology and "may provide sufficient support 
for a claim of service connection."  Layno v. Brown, 6 Vet. App. 
465, 469 (1994).  When, for example,  a disorder may be diagnosed 
by its unique and readily identifiable features, the presence of 
the disorder is not a determination "medical in nature" and is 
capable of lay observation.  In such cases, the Board is within 
its province to weigh that testimony and to make a credibility 
determination as to whether that evidence supports a finding of 
service incurrence and continuity of symptomatology sufficient to 
establish service connection.  See Barr v. Nicholson, 21 Vet. 
App. 303 (2007). 

Lay evidence can be competent and sufficient to establish a 
diagnosis of a disorder when (1) a layperson is competent to 
identify the medical disorder, (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.  See Davidson v. Shinseki, 581 F.3d 1313 
(Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 
(Fed. Cir. 2007). 

The Appellant contends that the Veteran's bipolar disorder was 
incurred or aggravated in service, and was a contributing cause 
of the Veteran's death. 

According to the death certificate, the Veteran died in April 
2006 at the age of 27 years as a result of a probable myocardial 
infarction.  The death certificate also noted that the Veteran 
had a 15-year history of drug abuse.  Bipolar disorder was listed 
as a significant condition.  

The Veteran was not service-connected for any disability during 
his lifetime.

The Veteran's May 1998 military entrance examination was negative 
for any complaints of an acquired psychiatric disorder.  During 
service, the Veteran was diagnosed with bipolar disorder, and 
hospitalized for treatment.

In June 1999, the Veteran was afforded a physical examination by 
the Medical Evaluation Board.  At that time, the Veteran was 
diagnosed with bipolar disorder.  In an August 2009 Medical 
Evaluation Board proceeding, the Board found that the Veteran's 
PTSD and bipolar disorder existed prior to his military service, 
but were aggravated by service.  However, a service Physical 
Evaluation Board report reflects a conclusion that the pre-
existing disorder was not aggravated by service.  The Veteran was 
discharged from the military in October 1999.

Post-service, the Veteran was treated by the local VA Medical 
Center (VAMC) for his bipolar disorder.  And, as previously 
mentioned, the Veteran died in April 2006 at the age of 27 years 
as a result of an immediate probable myocardial infarction.  The 
death certificate also noted that the Veteran had a 15-year 
history of drug abuse.  Bipolar disorder was listed as a 
significant condition.  

Based on the foregoing, the Board requested a VA medical opinion.  In 
May 2010, the Chief of VA's Behavioral Medicine reviewed the 
Veteran's claims file, including the Veteran's death certificate.  
The physician concluded that there was no objective evidence of 
record to state that the Veteran's PTSD/bipolar disorder was a 
contributory cause of his death.  The physician based this opinion on 
the fact that myocardial infarction, the Veteran's immediate cause of 
death, is not produced as a result of bipolar disorder.  The 
physician stated that the Veteran's significant history of substance 
abuse is more likely to have caused his myocardial infarction.  There 
is no contrary evidence in the claims file.

The medical evidence of record, as a whole, does not corroborate 
the Appellant's lay assertions that the Veteran's active military 
experience, including his in-service treatment for his bipolar 
disorder, caused his eventual death from a myocardial infarction.  
In this regard, it is noted that the Appellant, as a layperson, 
is not competent to offer opinions on medical diagnosis or 
causation, and the Board may not accept unsupported lay 
speculation with regard to medical issues.  See Espiritu v. 
Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 
211 (1993). Likewise, the Appellant is not competent to render a 
medical opinion as to the cause of the Veteran's death.

Moreover, there is no evidence that the Veteran developed 
cardiovascular disease within one year from his discharge from 
service.  Therefore, presumptive service connection is not 
warranted.  38 C.F.R. § 3.309.

Given the absence of competent medical evidence linking the 
Veteran's death to his active service, the Board finds that the 
Veteran's active service is not the principal or a contributory 
cause of the Veteran's death.  Accordingly, the Board concludes 
that the Veteran's death was not due to his active service.

For these reasons and bases, the preponderance of the evidence is 
against the Appellant's claim of service connection for the cause 
of the Veteran's death.  And as the preponderance of the evidence 
is against the claim, the doctrine of reasonable doubt is not for 
application.  See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the appeal is 
denied.


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