Citation Nr: 1124971 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 08-20 575 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1953 to June 1981. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appellant testified at a Travel Board hearing in September 2010. The Board remanded the claim for additional development in December 2010. 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 on September [redacted], 2005; the immediate cause of death was hemorrhagic stroke; no underlying cause of death was reported. 2. At the time of the Veteran's death, service connection was in effect for status post trauma of the right buttock with loss of soft tissue, rated as 40 percent disabling; posttraumatic arthritis of the right sacroiliac joint and pubic symphysis, rated as 20 percent disabling; status post fracture of the right acetabulum with posttraumatic changes, rated as 20 percent disabling; prostate cancer with erectile dysfunction, rated as 20 percent disabling; scar of the sacral area, rated as 10 percent disabling; and abdominal scar as a residual of laparotomy with repair of the left diaphragm, rated as noncompensably disabling. 3. The competent evidence does not show that the Veteran's death was caused by an illness or disease incurred in or aggravated by military service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2010); 38 C.F.R. § 3.159 (2010); 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 DIC benefits based on service connection for the cause of death. Generally, 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007); 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010). The RO sent correspondence in October 2005, January 2006, March 2010, and February 2011; a rating decision in February 2006; a statement of the case in May 2008, and a supplemental statement of the case in May 2010. 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 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 April 2011 supplemental 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. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical opinion in relation to the claim. 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 his claims, and therefore the error was harmless). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2010). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(c) (2010). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death; instead, a causal relationship must be shown. 38 C.F.R. § 3.312 (2010). Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the Veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312 (c)(3) (2010). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2010). The appellant contends that the Veteran's death from a hemorrhagic stroke should be service-connected because his service-connected disabilities contributed to his death. Specifically, the appellant testified that she believed the Veteran was service-connected for hypertension and diabetes mellitus which contributed to his death. The Veteran died in September 2005. The immediate cause of death was hemorrhagic stroke. As noted, at the time of the Veteran's death, service connection was in effect for status post trauma of the right buttock with loss of soft tissue, rated as 40 percent disabling; posttraumatic arthritis of the right sacroiliac joint and pubic symphysis, rated as 20 percent disabling; status post fracture of the right acetabulum with posttraumatic changes, rated as 20 percent disabling; prostate cancer with erectile dysfunction, rated as 20 percent disabling; scar of the sacral area, rated as 10 percent disabling; and abdominal scar as a residual of laparotomy with repair of the left diaphragm, rated as noncompensably disabling. Although the appellant indicated that she believed that service connection was also in effect for hypertension and diabetes mellitus, in fact service connection was not in effect for either of these disorders. The Veteran's service medical records do not reflect any complaints, findings or treatment for hypertension, diabetes mellitus, or any neurological disorders. At an October 1981 VA examination, the Veteran's blood pressure was recorded as 132/80 and cranial nerves II through XII were reviewed in detail and examination was noted to be normal. A March 1997 VA outpatient treatment report reflects a past medical history of questionable hypertension. Additional VA outpatient treatment reports do not reflect any additional complaints, findings, or treatment for hypertension or diabetes mellitus. Treatment reports from Brooks Army Medical Center reflect that the Veteran presented with a history of hypertension and prostate cancer and a sudden onset of a headache in September 2005. The Veteran was admitted to the intensive care unit and a computed tomography (CT) scan of the brain showed a large intraparenchymal hemorrhage with midline shift (hemorrhagic stroke). A neurological consultation was obtained and the Veteran was deemed not to be a viable surgical candidate due to the size of the bleed and brain destruction. The Veteran's blood glucose levels were noted to be 205, 251, and 187 during his hospital admission. The Veteran's condition deteriorated and a repeat CT scan was ordered the next day and revealed a new hemorrhage extending into the lateral ventricle and subarachnoid space. The Veteran ultimately passed away due to his deteriorating condition. The appellant testified at a hearing before the Board in September 2010 and indicated that she believed that the Veteran was service-connected for hypertension and diabetes mellitus and that the Veteran's service-connected disabilities contributed to his death from a hemorrhagic stroke. A medical opinion was obtained from a VA physician in March 2011. The physician was requested to determine whether the Veteran had diabetes mellitus and/or hypertension at the time of his death, whether any of the Veteran's service-connected disabilities caused or contributed substantially or materially to his death, and whether the Veteran's death was otherwise causally related to his military experience. The VA physician reviewed the claims file, noted that review, and included reference to the pertinent evidence in the claims file. Following review of the claims file, the examiner opined that a diagnosis of diabetes did not exist at the time of his death. The examiner noted that no persistent elevation of glucose was found in the VA medical records including a blood glucose reading of 106 in July 2005, less than two months prior to the Veteran's death. The physician noted that the elevated blood glucose levels during the Veteran's Brooks Army Medical Center stay in September 2005, at the time of his hemorrhagic stroke, were most consistent with an exaggerated stress reaction due to the stroke and were not consistent with a diagnosis of diabetes mellitus. The physician cited to a medical encyclopedia which noted that stress-induced hyperglycemia is a common problem in patients admitted to the intensive care unit and results from excessive release of counter regulatory hormones and cytokines. The physician also opined that a diagnosis of hypertension did not exist at the time of the Veteran's death. He noted that although the emergency room at Brooks Army Medical Center included hypertension as part of the Veteran's past medical history, this diagnosis was not substantiated by a review of a the rest of the medical records which did not confirm persistent elevations of the Veteran's blood pressure, a diagnosis of hypertension, or treatment for hypertension. Finally, the examiner concluded the Veteran's service-connected disabilities did not cause or contribute materially to his death and the Veteran's death was not otherwise causally related to military service. The physician noted that a hemorrhagic stroke resulted from a ruptured blood vessel(s) in the Veteran's brain. The physician noted that the Veteran's service-connected disabilities were a prostate condition, buttocks injury, traumatic arthritis, impairment of the femur, and superficial scars and concluded that there was no evidence that any of the service-connected disabilities contributed to the ruptured blood vessel as there was no evidence of brain metastasis from the Veteran's prostate cancer and the other disabilities are not connected anatomically or physiologically related to the brain. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the appellant is not entitled to service connection for the cause of the Veteran's death. The evidence does not demonstrate a direct relationship between the Veteran's cause of death and his military service. The VA physician who provided the March 2011 opinion reviewed the claims file, considered the Veteran's medical history, and provided a medical opinion with supporting rationale. The examiner specifically found that diagnoses of hypertension and diabetes mellitus did not exist at the time of the Veteran's death and that the Veteran's service-connected disabilities did not cause or contribute substantially or materially to his death and the Veteran's death was not otherwise causally related to his military service. In the absence of a competent medical opinion linking the Veteran's cause of death to his military service or to a service connected disability, service connection is not warranted. The Board acknowledges the appellant's contention that the Veteran's service-connected disabilities contributed to his cause of death. However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The appellant can attest to factual matters of which she had first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the appellant as a lay person has not been shown to be competent to make medical conclusions. Therefore, her statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The appellant's lay assertions cannot establish a competent evidentiary link between the Veteran's cause of death and a service-connected disability. The Board is very sympathetic to the appellant for the loss of her husband. Unfortunately, for the reasons and bases set forth above, the Board must conclude that the preponderance of the evidence is against the appellant's claim, and service connection for the cause of the Veteran's death must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2010). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs