Citation Nr: 1111892	
Decision Date: 03/24/11    Archive Date: 04/06/11

DOCKET NO.  06-36 900	)	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:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Army from July 1944 to August 1946.  He died on April [redacted], 2005; the appellant is his surviving spouse.

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).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Phoenix, Arizona, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefit sought.

In a June 2010 decision, the Board denied entitlement to service connection for the cause of the Veteran's death.  The appellant appealed this decision, and in October 2010 the Court of Appeals for Veterans Claims (the Court), on the basis of a Joint Motion, vacated the Board's denial and remanded the matter for further consideration.

The appellant testified at a March 2007 hearing held at the RO before a Decision Review Officer (DRO); a transcript of the hearing is associated with the claims file.  She has not requested a Board hearing.




FINDINGS OF FACT

1.  The death certificate lists as the cause of the Veteran's death on April [redacted], 2005, pneumonia, probably bacterial, of unknown etiology; due to or as a consequence of dementia of unknown type.

2.  At the time of the Veteran's death, he was service connected for chronic prostatitis, rated 20 percent disabling; pyelonephritis with left renal cyst and hypertension, rated 10 percent disabling; chronic sinusitis with rhinitis, rated 10 percent disabling; and left eye hypertensive retinopathy, rated 0 percent disabling.  His combined disability evaluation was 40 percent.

3.  Neither pneumonia nor dementia is shown to be causally related to service or any service connected disability.

4.  A service connected disability did not cause or substantially and materially contribute to the Veteran's death, nor did any service connected disability hasten the Veteran's death.


CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2010).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a).  In cases of service connection for the cause of death, notice must also include information on what disabilities the Veteran was service connected for at the time of death, and how to establish service connection for additional disabilities.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).

The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).

The June 2005 letter sent to the appellant prior to the initial adjudication of the claim failed to provide adequate notice.  Although the letter substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence, it did not inform the appellant of the Veteran's service connected disabilities or how to establish service connection for additional disabilities.  However, at the March 2007 DRO hearing, the appellant demonstrated that she was aware of the Veteran's service connected disabilities, and her arguments showed an understanding of the concepts of service connection.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

While the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claim for service connection is denied.  Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before VA.  No medical opinion has been obtained in light of the extensive medical evidence of regard regarding the Veteran's final year of life; the evidence of record is sufficient for adjudication.  38 C.F.R. § 3.159.  Moreover, in compliance with the Court's October 2010 directive, the Board specifically finds that "no reasonable possibility exists" that a medical opinion would aid in substantiating the claim.  38 U.S.C.A. § 5103A; Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008).  As is discussed in greater detail below, the extensive medical records preceding the Veteran's death show no chronic treatment for or aggravation of any service connected disability.  Only acute and minor exacerbations of blood pressure, and the complete absence of any indicia of escalating kidney problems foreclose any rational possibility that the allegations of the appellant might be substantiated by a medical opinion.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

II.  Service Connection for the Cause of the Veteran's Death

When a veteran dies from a service connected disability, VA shall pay DIC to the veteran's surviving spouse.  38 U.S.C.A. § 1310.  The death of a veteran will be considered service connected when the evidence establishes that a service connected disability was either the principal or a contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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)(1).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Certain diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period, and specific threshold requirements are met.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307, 3.309(e).  Further, disability that is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  

The death certificate states that the Veteran died of pneumonia and dementia.  Medical records from the VA medical center covering the Veteran's terminal hospital admission verify this.

The appellant contends that the death certificate fails to reflect the impact of the Veteran's service connected hypertension and polynephritis on his death.  She maintains that his fluctuating blood pressure contributed to cardiac problems, including a heart attack, and that this and kidney problems so weakened the Veteran that he was unable to fight off any infection.

Unfortunately, the record contains no competent evidence supporting the appellant's theory.  VA treatment records for the last year of the Veteran's life reveal no chronic exacerbations of his blood pressure; he had only isolated increases in connection with other problems, such as infections or diverticular bleeding.  Records do not reflect the occurrence of any cardiac events during this period.  No kidney treatment was required prior to his death.  The appellant, as a layperson, is not competent to opine on the cause of the Veteran's death or the accuracy of his diagnoses.  She lacks the specialized knowledge and training required to render such opinions.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  Even if she were competent to opine, her statements would be outweighed by the extensive medical evidence of record tracking the Veteran on a daily basis over the last months of his life.

Moreover, there is no evidence or allegation that pneumonia or dementia were themselves service connected.  Both had their onset many decades after the Veteran's military service.  Service treatment records reflect no treatment for or complaints related to either condition, and there is no evidence, either lay or medical, of continuity of symptomatology since service.  The pneumonia was an unfortunate opportunistic infection, complicated by the presence of dementia that prevented the Veteran from assisting in his own care and recovery. 

The Board notes that none of the Veteran's service connected disabilities affected a "vital organ," nor were any of such severity that any such organ, even if involved, would have failed to function properly and so weakened or debilitated the Veteran as to have contributed to his death.  38 C.F.R. § 3.312(c)(3).  Further, additional disabilities which did clearly impact the Veteran's overall health, such as diverticulitis, have been previously found to be not service connected.

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for the cause of the Veteran's death is not warranted.


ORDER

Service connection for the cause of the Veteran's death is denied.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs