Citation Nr: 1300121 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 09-10 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and the Veteran's son ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from June 1950 to April 1954. He died in June 2007. The appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. In May 2012, the claim was remanded to the RO for further development. When this case was before the Board in May 2012, it was found that the appellant was also seeking entitlement to dependency and indemnity compensation benefits, death pension benefits, and accrued benefits. The Board stated, however, that without a rating decision specifically denying the additional benefits listed on the January 2010 supplemental statement of the case, those issues were not before the Board. 38 U.S.C.A. §§ 7104, 7105 (West 2002). VA has yet to issue a statement of the case on these matters even though it was referred to the RO in the May 2012 remand. The Board cannot adjudicate these additional claims. The Board will again refer these issues to the RO for appropriate consideration and formal adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in June 2007. The death certificate lists the immediate cause of death as coronary artery disease. 2. At the time of death, the Veteran was service connected for subtotal gastrectomy, rated as 60 percent, and anxiety reaction with a mild psychophysiological cardiovascular reaction, rated as noncompensable. 3. Coronary artery disease was not manifest during active service, and cardiovascular disease was not manifest within one year of separation from active duty and is not otherwise attributable to active service. 4. Coronary artery disease was not caused or worsened by a service-connected disability. CONCLUSION OF LAW The Veteran's death was not caused by a disease or injury incurred in or aggravated by service, nor did any such disease or injury contribute substantially or materially to his death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in correspondence dated in August 2007 of the information and evidence needed to substantiate and complete her claim. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that because the RO's adjudication of a claim for dependency and indemnity compensation benefits hinges first on whether a veteran was service-connected for any condition during his lifetime, the notice in such a claim must include, inter alia, a statement of the conditions (if any) for which a veteran was service-connected at the time of his death. Id. at 352-53. In this case, while the appellant was not notified of such in the August 2007 notice letter, she was provided notice of the Veteran's service connected disorders when she was provided a copy of the October 2007 rating decision in October 2007. Further, the statements of the representative shows actual knowledge of the Veteran's service connected disabilities and what is necessary to support the claim. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law). The evidence shows that any VA error in notifying the appellant does not reasonably affect the fairness of this adjudication. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, including medical records, and providing an opportunity for a hearing. This matter was previously remanded by the Board in May 2012 to obtain private records and a VA medical opinion. In May 2012, the appellant was asked to provide information regarding the healthcare provided to the Veteran before his death to include completing and returning a VA Form 21-4142 for each provider to include the Lawrence and Memorial Hospital in New London, Connecticut. The appellant did not submit the requested information. The Board is mindful that her representative argues that the May 2012 letter did not include a specific request for the emergency room records but rather asked for the hospital summary. The RO, however, informed the appellant that the VA Form 21-4142 was needed for them to obtain treatment information from Dr. Carola and any other physicians, and the hospital. Although the RO indicated that a VA Form 21-4142 was needed to obtain the Veteran's hospital summary from the Lawrence and Memorial Hospital in New London, Connecticut rather than the hospital records, the fact remains that the appellant failed to respond to any of the RO requests for authorization for the private providers and hospital. The Board finds that the instructions set forth in its remand were substantially complied with and that VA fulfilled its duty to assist. Without authorization from the appellant, the private treatment records and hospital records could not be obtained. Hence, the case is ready for adjudication. Analysis The appellant appeals the denial of service connection for the cause of the Veteran's death. The appellant contends the Veteran had Hepatitis C due to a blood transfusion from having his stomach removed, and that he had high blood pressure during service and hence, service related hypertension. The appellant also relates that the Veteran had a lot of scars on his stomach from his gastrointestinal surgery. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cardiovascular renal disease including hypertension, may be service connected if incurred or aggravated by service or manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For a 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." 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. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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). Initially, the Board finds that the evidence preponderates against entitlement to service connection for the cause of the Veteran's death on a direct basis. Service treatment records reveal no complaints, findings or diagnoses of heart disease to include cardiovascular renal disease. At separation, the Veteran's heart was normal. Cardiovascular renal disease is also not shown within a year of separation from active duty. To the extent that the appellant argues the Veteran had hypertension in service, the Board notes that the Veteran's blood pressure was shown to be elevated above normal in June 1954 a few months post service. An organic condition, however, was not found. There is no evidence of cardio vascular disease for decades following the Veteran's discharge from service. When examined in July 1959 and March 1964 hypertension was not shown or diagnosed. When examined in January 1968, i.e., more than a decade post service, the Veteran's heart was normal. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). It is also noted that a July 2012 VA examiner found that the service treatment records do not show any condition or injury that can be related to the cause of death. In sum, the evidence preponderates against finding that the Veteran's cause of death is directly related to service. There is no evidence that a service-connected disability was the principal or contributory cause of the Veteran's death. At the time of his death, the Veteran was service connected for residuals of a subtotal gastrectomy and an anxiety reaction. The June 2007 death certificate cites the immediate cause of death as coronary artery disease. Physician Assistant, M. S., found in November 2009 that there was no evidence in the medical record to justify the final emergency department diagnosis of coronary artery disease. He expressed that the Veteran had no evidence for being treated for any cardiac related disease and was not on any medication for heart disease at the time of death. He commented that although a June 1954 record found no evidence of cardiovascular disease, the Veteran's records indicate instances of elevated high blood pressure and some early hypertension that may have led to the early onset of cardio vascular disease. M.S. opined that, based on the records examined and without a post mortem examination, it would be difficult to determine exactly what the Veteran died from. Dr. C, a VA examiner, however, opined in July 2012 that it was less likely as not that the Veteran's service connected disorders caused or contributed substantially or materially to cause his death or that they aided or lent assistance in the production of death. The only objective documentation regarding causation of death is the death certificate which states coronary artery disease he states. The examiner found no objective evidence in the record to substantiate that the Veteran's service connected conditions were related to the cause of his death. Regarding the opinion of M.S., Dr. C found that M.S.' statements were unsubstantiated as he did not provide a rationale for his opinion or provide an alternative cause of death other than commenting on the Veteran's significant prior medical history of gastrointestinal disease. Dr. M, an independent medical examiner, concurred with Dr. C that it is less likely than not (less than 50 percent probability) that the Veteran's service connected conditions including residuals of a subtotal gastrectomy and an anxiety reaction with mild psychophysiologic cardio vascular reaction caused or contributed to his death. In the absence of any medical records from the emergency room, any medical records from the years immediately preceding the Veteran's death and the recollections of Dr. C conversations with his family around the time of his death, the death certificate is the lone official record, and it lists coronary artery disease as the cause of death. The more probative evidence is against a finding of a relationship between the Veteran's service connected disabilities and the coronary artery disease that caused his death. Dr. C and Dr. M found no correlation between the Veteran's service connected disabilities and his death. The opinions are well reasoned, thorough and consistent with the historical record. Although M.S. relates that it would be difficult to determine exactly what the Veteran died from, he did not directly attribute the Veteran's death to his service connected disability nor did he offer an alternative cause of death for the Veteran. Rather, he just questioned the exact cause of the Veteran's death. The Board finds M.S. opinion lacks probative value for the reasons stated and that the opinions of Dr. C and Dr. M are more probative in addressing the issue at hand. Finally, it must be noted that M.S. is a physician's assistant and as such lacks the professional qualifications of Drs. C and M. The Board has considered the appellant's sincerely held belief that the Veteran's death was related to a disability of service origin. As a lay person, the appellant is competent to report on that which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, the question of etiology of the Veteran's death goes beyond a simple and immediately observable cause-and-effect relationship. As such, she is not competent to render an opinion of etiology as to the medical cause of her husband's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record is devoid of a showing that the Veteran's death was caused by service or a service-connected disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for the cause of the Veterans death is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs