Citation Nr: 1226697 Decision Date: 08/02/12 Archive Date: 08/10/12 DOCKET NO. 10-35 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING The appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to December 1945. He died in June 2008. The appellant is seeking benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In April 2010, the appellant testified before a Decision Review Officer (DRO) at a hearing at the local RO. A transcript of the hearing is associated with the claims file. On her August 2010 substantive appeal, submitted via VA Form 9, the appellant requested a hearing before the Board at the local RO. However, in May 2012, the appellant submitted a statement wherein she withdrew her request for a Board hearing. The Board, then, finds that all due process has been afforded the appellant with respect to her right to a hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. According to the official certificate of death, the Veteran's death in June 2008 was caused by dementia. No other causes of death were indicated but general debility was listed as a significant condition contributing to death but not resulting in an underlying cause of death. 2. At the time of the Veteran's death, service connection had been established for removal of the left testicle and he was receiving special monthly compensation for loss of use of a creative organ. 3. The evidence of record preponderates against a finding that the Veteran died from a disease or injury incurred in or aggravated by military service. CONCLUSION OF LAW A disability incurred or aggravated in service or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1310, 1311, 5100-5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 , 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. Otherwise, determinations on the issue of harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In the context of a claim for DIC benefits, § 5103(a) 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 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Review of the record reveals that the RO sent the appellant a letter in December 2008, prior to the initial AOJ decision in this case, which provided the information and evidence needed to substantiate a DIC claim based on a previously service-connected condition. However, it does not appear that the appellant has been informed of the disabilities for which the Veteran was service-connected at the time of his death or an explanation of the information and evidence needed to substantiate a DIC claim based on a condition not yet service-connected. Therefore, the Board finds the VCAA duty to notify has not been satisfied with respect to informing the appellant of the information and evidence needed to substantiate her claim of service connection for cause of the Veteran's death, as it is a claim for DIC benefits. However, after considering the entire record in this proceeding, including all evidence and material of record, the Board finds that the appellant was not prejudiced by any failure to give notice as to the information and evidence needed to substantiate her DIC/cause of death claim because it appears she was aware of the information and evidence needed to substantiate her claim. Indeed, the evidentiary record shows that the appellant had "actual knowledge" of the sole disability for which the Veteran was service-connected for, as the record reflects that, at the April 2010 DRO hearing, the appellant testified that she was aware that the Veteran was drawing disability for the loss of a testicle. See DRO hearing transcript, p. 4. The evidence also reflects that the appellant had actual knowledge that, in order for service connection to be granted for cause of the Veteran's death, evidence was needed showing that he died as a result of a disability incurred in or otherwise related to service. In this regard, the Board notes that the appellant has consistently argued that the Veteran suffered from PTSD as a result of his military service and that his PTSD contributed to or aggravated his dementia, which was the immediate cause of death. See DRO hearing transcript, p. 2; see also statements from the appellant dated July 2009 and April 2010. Therefore, given the appellant's apparent knowledge of the type of evidence needed to substantiate her cause of death claim, the Board finds that any additional or proper notice to the appellant would not have changed the outcome of this appeal because she was aware of the evidence and information needed in this case and attempted to submit it. As a result, the Board finds the appellant was not prejudiced by the notice defect in this case. Relevant to the duty to assist, the Veteran's service treatment records, as well as all post-service treatment records identified by the appellant and the record have been obtained and considered. The appellant has not identified any additional, outstanding records that she wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of her claim. Analysis The appellant seeks dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1310 based upon service connection for cause of her husband's death. Service connection for cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal (primary) cause of death, it must singly, or with some other condition, be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially, combined to cause death, or 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). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). The Veteran died in June 2008. At the time of his death, service connection was established for removal of the left testicle and he was receiving special monthly compensation for loss of use of a creative organ. See rating decisions dated February 1952 and October 1952. According to the official certificate of death, the immediate cause of the Veteran's death was dementia, with no other conditions listed as an underlying cause of death. However, general debility is listed as a significant condition contributing to death but not resulting in an underlying cause of death. The appellant has asserted that the Veteran suffered from PTSD as a result of his combat service in Guadalcanal and Okinawa. In this regard, the appellant has stated that, after service, the Veteran manifested several symptoms of PTSD, including being unable to hunt, hear guns being fired, or watch television shows about combat. The appellant also submitted a lay statement from G.S., who recalled an incident where he and Veteran went to a live firing exercise in 2006. G.S. stated that, when the guns were fired, the Veteran began experiencing a combat flashback, as he started shaking and tried to run to the car stating that they needed to get into a bunker. See June 2009 lay statement from G.S. Based on this evidence, the appellant has stated that service connection for PTSD should have been established for the Veteran prior to his death. She has also asserted that the Veteran's PTSD was a contributory cause of death, as it contributed to, aggravated, or complicated his dementia and subsequently caused his death. In support of her claim, the appellant relies primarily on an October 2008 treatment record wherein the Veteran's treating neurologist, Dr. A.A., stated that, prior to his death, the Veteran was being followed by the neurology clinic for treatment of dementia and Alzheimer's disease and that the Veteran had a history of PTSD which aggravated his dementia with increased number of vivid flashbacks. The October 2008 VA treatment record is considered competent medical evidence. However, after considering the entire evidentiary record, the Board finds that the Veteran did not have a competent diagnosis of PTSD prior to his death and, thus, the probative value of the statement made by Dr. A.A. is significantly lessened. In making this determination, the Board notes that the evidentiary record contains treatment records dated from 2005 to 2008 which document treatment the Veteran received prior to his death. The evidence shows that, in 2005, the Veteran transferred his treatment for depression from the Birmingham mental health clinic to the clinic in Huntsville, Alabama. The examining physician noted the Veteran's history of combat service in Okinawa. However, the physician noted that the Veteran stated that things did not bother him too much after his return from service but that, over the last few years, he was having more difficulty with nightmares and thoughts about the war. The physician noted that the Veteran had a diagnosis of dementia due to Alzheimer's disease, as well as his depression. He also noted that the Veteran had "PTSD-like" symptoms which may be emerging as his dementia progressed. After examining the Veteran, the examiner rendered a diagnosis of dementia due to Alzheimer's disease, depression not otherwise specified, and anxiety not otherwise specified, which he noted was probable PTSD. Subsequent treatment records reflect that the Veteran's diagnosis of dementia, depression, and anxiety, with probable PTSD, was continued and that he tested positive on a screen for PTSD in June 2006. However, the Board finds probative that objective examination of the Veteran never resulted in an actual diagnosis of PTSD on Axis I. See VA treatment records dated from 2005 to 2008. In this regard, the Board finds that a positive PTSD screen and references to "probable PTSD," without an actual diagnosis of PTSD, is not considered a competent diagnosis of such. Indeed, a basic screening for PTSD is not considered competent evidence of a diagnosis or disability, as a competent diagnosis of PTSD should be made in accordance with the criteria of the DSM-IV. See 38 C.F.R. § 4.125(a) which refers to DMS-IV or the American Psychiatric Associations' Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994), as the source for criteria for the diagnosis of claimed psychiatric disorders. Moreover, the Board finds that the references to "probable PTSD" are not accepted as a competent diagnosis of PTSD, as any such finding is no more than speculative in nature. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). In evaluating this claim, the Board finds probative that the Veteran was afforded mental health treatment on numerous occasions prior to his death and that the evidence of record does not reflect that any such treatment or evaluation resulted in an actual diagnosis of PTSD on Axis I in accordance with the criteria of the DSM-IV. In fact, the appellant has not submitted or identified any medical evidence which shows that the Veteran had a competent diagnosis of PTSD prior to his death. The Board has considered the appellant's assertions that the Veteran had PTSD; however, her statements are not considered competent evidence of a diagnosis of PTSD because the presence of PTSD or any psychiatric disability is a complex medical question and it is not argued or shown that the appellant is qualified through specialized education, training, or experience to render a diagnosis of a psychiatric disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, the preponderance of the evidence shows that, prior to his death, the Veteran was diagnosed with dementia due to Alzheimer's disease, depression, and anxiety. While medical professionals noted that the Veteran suffered from PTSD-like symptoms and that he had "probable PTSD," no medical professional ever rendered a diagnosis of PTSD in accordance with the DSM-IV criteria. Therefore, the Board finds that the preponderance of the evidence does not reflect that the Veteran suffered from PTSD prior to his death. As such, Dr. A.A.'s statement that the Veteran had a history of PTSD which aggravated his dementia is not considered probative evidence, as it is based upon an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinion based upon inaccurate factual premise has no probative value). In summary, a clear preponderance of the evidence shows that the Veteran was not diagnosed with PTSD prior to his death. The evidence reflects that the immediate cause of the Veteran's death, i.e., dementia, was not incurred in or otherwise related to his military service. Indeed, the service treatment records do not contain any complaints, treatment, or findings related to dementia or any other psychiatric symptoms during military service and the evidentiary record reflects that the Veteran never sought to establish service connection for dementia or any other psychiatric disability prior to his death. In fact, while the evidence of record reflects that the Veteran had a history of treatment for depression, dementia, and anxiety, there is no indication that the Veteran's psychiatric disabilities were incurred during his military service or were otherwise related thereto. A clear preponderance of the evidence is against a finding that the Veteran died from a disease or injury incurred in or aggravated by military service. Because the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs