Citation Nr: 1102756 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 08-27 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and the appellant's son ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from July 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Historically, a November 1945 rating decision granted service connection for residual gunshot wound scar of the left forearm which was assigned an initial 10 percent disability rating. A claim for service connection for posttraumatic stress disorder (PTSD) and for a scar of the left hand was received on March 7, 2003. The Veteran appealed an August 2003 rating decision which denied service connection for PTSD. A February 2004 rating decision granted service connection for a scar of the left hand which was assigned an initial noncompensable rating effective March 7, 2003. An August 2004 rating decision granted service connection for PTSD which was assigned an initial 70 percent disability rating effective March 7, 2003, but denied service connection for residuals of cold injuries of both lower extremities. That rating decision also granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) effective March 7, 2003; and also granted basic eligibility to Dependents' Educational Assistance (DEA) effective March 7, 2003. The Veteran did not appeal the August 2004 rating decision. This grant of service connection for PTSD was a complete grant of the benefit sought on appeal and, thus, that matter was no longer in appellate status. As there was no jurisdiction conferring Notice of Disagreement (NOD) as to the downstream elements of effective dates or compensation levels, no such issues were placed in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The appellant and her son testified before a Decision Review Officer (DRO) in February 2009 and in November 2010 they testified at a hearing at the RO before the undersigned Acting Veterans Law Judge. Transcripts of those hearings are on file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in February 2007. The death certificate shows that at his death he was 82 years of age and that he died of "underdetermined natural" causes. A history of throat cancer was listed as a significant condition contributing to death but not resulting in the underlying cause of death. No autopsy was performed. 2. At the time of death, the Veteran's service-connected disabilities were PTSD, rated 70 percent disability; a residual gunshot wound scar of the left forearm, rated 10 percent disabling; and a scar of the left hand, rated noncompensably disabling. He had had a combined disability rating of 10 percent since April 1, 1946, and a combined disability rating of 70 percent since March 7, 2003. He was in receipt of a TDIU rating since March 7, 2003. 3. The evidence does not show that the Veteran's incurred cardiovascular disease or cancer during service nor was any such disease aggravated during service, and the Veteran's throat cancer was not diagnosed until many decades after service, and was not causally related to an incident of service nor was it proximately due to or the result of service-connected disabilities, including PTSD. 4. The Veteran did not have any disability of service origin that contributed substantially and materially to his death, or hastened it, or otherwise aided or lent assistance to it. CONCLUSIONS OF LAW 1. The Veteran's fatal cancer was not incurred in or aggravated by active service, and cancer did not manifest to a compensable degree within one year after service, and so may not be presumed to have been so incurred, and was not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) and (b) (2010). 2. A service connected disability did not cause, or contribute substantially or materially to cause, the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide (Type One, Type Two, and Type Three, respectively). 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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). Certain additional notice requirements attach in the context of a claim for 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. The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A review of the record shows the appellant was provided with pre- adjudication VCAA notice by letter, dated in July 2007. The July 2007 letter notified appellant as to the evidence needed to substantiate a claim of service connection for the cause of the Veteran's death, namely, evidence that the Veteran died from a service-connected disability. The appellant was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that she could submit private medical records or authorize VA to obtaining private medical records on her behalf. As for the degree of disability assignable and effective date of the claim for service connection for the cause of the Veteran's death, as the claim of service connection for the cause of the Veteran's death is denied, no disability rating and effective date will be assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the appellant with respect to any defect in the VCAA notice required under Dingess at 19 Vet. App. 473. See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Thus, the document substantially complies with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, 483 F.3d 1311, 2007 WL 1016989 (C.A. Fed. 2007). The July 2007 satisfied the Hupp criteria to the extent that it informed appellant that she had to show that the condition that caused the Veteran's death had its onset in service or was permanently aggravated by the military service. It provided information as to the type of evidence she should submit to show this. To the extent that appellant was not specifically informed of the conditions for which the Veteran was service-connected at the time of his death, at the travel Board hearing she related the Veteran's service-connected PTSD had caused stress which resulted in deterioration in his overall health and, so, contributed to his death. Thus, the Board finds that she had actual knowledge of the conditions for which the Veteran was service-connected. See Dalton v. Nicholson, 21 Vet. App. 23, 30- 31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). To the extent that appellant was also not specifically informed of the information and evidence needed to establish service connection for the cause of the Veteran's death based on a condition not yet service-connected, the Board finds that she is not prejudiced by the omission of such notice. The appellant has asserted that the Veteran's death was related to deterioration in his overall health due to stress sustained from his service- connected PTSD and this deterioration of health contributed to his death from cancer. Thus, it is clear that she is not contending that some particular disease or disability of service origin which is not yet service-connected caused or contributed to the Veteran's death. That is, it is not alleged that the Veteran's cancer was related to his military service. See Dalton, 21 Vet. App. at 30-31. Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran's service treatment records (STRs) have been obtained and are on file, as are his VA treatment records and records from St. Mary's Medical Center. The appellant and her son testified before a DRO in February 2009 and they testified at a personal hearing before the undersigned Acting Veterans Law Judge in November 2010. The appellant has not identified any additionally available evidence for consideration in her appeal. As there is neither indication that the appellant was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background The STRs are negative for cancer. On file are VA outpatient treatment (VAOPT) records since 2003. These show that the Veteran had a history of hypertension. An April 2003 record reflects that the Veteran reported first starting to drink moonshine at the age of 11 or 12 and that he drank daily for most of his life. His wife reported that his drinking had increased in frequency and amount approximately 30 years ago. On VA examination of the Veteran's scars in April 2003 it was again noted that he had hypertension. On VA PTSD examination in July 2003 it was noted that he had had carcinoma of the head and neck based on biopsies in January 2003. On VA PTSD examination in March 2004 it was noted that the Veteran had had radiation treatment for a lump on the right side of his neck and that the radiation treatment had caused him to developed difficulty swallowing, with one episode of food lodging in his throat which required hospitalization. After a mental status examination there was a question of whether this episode had caused oxygen deprivation in light of his now having decreased cognitive function compared to his last examination. On VA frostbite examination in March 2004 it was noted that the Veteran had had radiation therapy to his neck for metastatic cancer, a squamous cell cancer, which had metastasized from a cancer on his ear. There was an opinion that his squamous cell cancer was most likely due to chronic sun exposure since he had had multiple other problems with basal cell carcinoma and squamous cell carcinoma, and actinic keratosis of the ears, face, neck, and chest. The opinion of the examiner, after a review of the claim file, was that there was no significant cold injury during the Veteran's military. A February [redacted], 2007, clinical record from the St. Mary's Medical Center shows that on that day the Veteran was brought to the emergency room. He had been found at home slumped over and went into cardiopulmonary arrest. When found it was noted that there was a lot of hemorrhage from his tracheotomy site. Attempt to revive the Veteran failed and he expired. The diagnostic impressions were cardiopulmonary arrest and a history of throat cancer, not otherwise specified. At a hearing in February 2009 before a DRO the appellant and her son testified that stress from PTSD in combination with alcohol, which he drank to control his PTSD symptom, contributed to his death. Page 2 of the transcript of that hearing. She testified that he did not have hypertension or any heart disease. Page 4. No clinician had ever told her that the Veteran's PTSD had contributed to his death. Prior to his death he had had throat cancer which had metastasized but that surgical intervention was not possible. Pages 5 and 6. At the November 2010 travel Board hearing the appellant testified that the Veteran had had problems due to mental illness for the 60 years of their marriage. Pages 2 through 4 of the transcript. He had been on medication for the last few years of his life and had received psychiatric treatment. Page 4. He drank alcohol to alleviate his PTSD symptomatology. Page 5. He had received two (2) Purple Hearts for his actions during service. Page 6. At the time of his death he had to use a feeding tube and also a tube to assist his breathing. On the day of his death, he was at home upstairs and had signaled to his wife, by hitting his walker, that he needed her help. When she arrived, he was bleeding from the mouth. She had called for emergency help but the Veteran died before the help arrived. Pages 6 and 7. She believed that stress from the Veteran's PTSD contributed to cause deterioration in his health. She further testified that she, herself, had had cancer in 1997 due to stress. Page 7. The Veteran had been essentially confined to his bed for about a year prior to his death. Page 11. Applicable Laws and Regulations DIC is awarded if a service-connected disability was either the principal or a contributory cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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. The issue involved will be determined by 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. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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 contributory cause of death is inherently one not related to the principal cause. In determining whether the 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 3.312(c)(2). Service-connected diseases or injuries involving active processes 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 disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which 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). However, DIC is also awarded if the veteran's death can be service connected. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. That is, service connection for the cause of the veteran's death is granted, post mortem, and DIC is awarded, if the evidence shows that disease or injury actually incurred or aggravated in service, though service connection had not been granted for the disease or injury prior to the veteran's death, was either the principal or a contributory cause of death. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection for current disability, or for disability that causes or contributes to cause death, requires evidence of an etiologic relationship between events in service, or an injury or disease incurred there, and the death or current disability. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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." Id. 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. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.; See also Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection is also possible for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, including cardiovascular disease and cancer, will be presumed to have been incurred in service if manifested to a compensable degree 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. Disability that is proximately due to or the result of a service- connected disorder shall be service-connected; also service connection will also be granted for aggravation of a non-service- connected condition by a service-connected disorder, although compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b). Analysis Initially, the Board notes that under 38 U.S.C.A. § 1318(a): The Secretary shall pay benefits under this chapter [38 U.S.C. §§ 1301 et seq.] to the surviving spouse and to the children of a deceased veteran described in subsection (b) of this section in the same manner as if the veteran's death were service connected. 38 U.S.C. § 1318(b) provides that: A deceased veteran referred to in subsection (a) of this section is a veteran who dies ... and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if- (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death. Here, however, the Veteran was in receipt of a TDIU rating since only March 7, 2003, and so he was in receipt of a TDIU rating for a period just short of four (4) years, and not the ten (10) years required under 38 U.S.C. § 1318(b). While the appellant has testified that the Veteran was totally disabled for an unspecified period prior to the March 2003 effective date for PTSD, the evidence shows neither VA treatment nor any communication from the Veteran during the period from 1949 until 2003. Thus, there cannot have been a claim, even an informal claim, for service connection for PTSD or a claim for a TDIU rating prior to 2003 and, consequently, there is no possibility of entitlement to DIC under 38 U.S.C. § 1318(b). Merits The Veteran died in February 2007, as a result of undetermined natural causes, and his only service-connected disabilities at that time were PTSD and scars of the left hand and left forearm. At his death no claim was pending for service connection for any additional disability. There is no evidence of the Veteran's cancer until many years after his military service. The service treatment records are unremarkable for indications of complaints or objective clinical findings of cancer. The Board has carefully and sympathetically considered the appellant's arguments in support of her assertion that stress from the Veteran's PTSD caused deterioration in his overall health which hastened his death. In this regard, lay testimony is competent 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); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms); see also 38 C.F.R. § 3.159(a)(1) and (2) defining, respectively, competent medical and lay evidence. However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Here, the appellant, as a lay person untrained in the field of medicine, is not competent to offer an opinion on medical matters, such as a nexus between medical disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Specifically, she is not competent to offer her opinion as being one which is medical in nature as to any alleged nexus between the Veteran's service-connected PTSD and the cause of his death. Hence, this argument does not provide a factual predicate upon which compensation may be granted. This is particularly true in light of the passage of more than half a century between the inservice incurrence of the service-connected PTSD and his death at the advanced age of 82. In sum, the Veteran had not been granted service connection, prior to his death, for cancer which contributed to or caused his death; and there is no basis for service connection for the cancer that caused or contributed to his death. Rather, his cancer first manifested nor prior to 2003, more than a half a century after his service in the military ended and the incurrence of his service-connected PTSD. For the reasons stated the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thus, the appellant's claim for entitlement to service [CONTINUED ON NEXT PAGE] connection for the cause of the Veteran's death must be denied. See 38 C.F.R. § 3.312. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ N. Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs