Citation Nr: 1300398 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-34 566A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1949 to August 1952. The Veteran died in March 2006. The appellant is the Veteran's widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In May 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In August 2010, the Board remanded the issues of entitlement to accrued benefits based on the claims for service connection for residuals of cold injury to the feet and hands, service connection for a respiratory disability to include COPD, and a compensable rating for hearing loss disability so that the RO will issue a statement of the case in accordance with Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the RO issued an August 2012 statement of the case regarding the accured benefits claims. However, the record does not reflect that the appellant filed a substantive appeal regarding these issues to this date. Therefore, the Board does not have jurisdiction over these issues and they are not herein for consideration. 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 March 2006; a certificate of death listed the immediate cause of death as atherosclerotic heart disease and other significant conditions contributing to death as asthma, hypertension, diabetes, chronic obstructive pulmonary disease (COPD), congestive heart failure and obesity. 2. At the time of the Veteran's death, service connection had been established for bilateral hearing loss, evaluated as noncompensable, and tinnitus, evaluated as 10 percent disabling. 3. The evidence of record does not show that the Veteran's death is related to his service or a service-connected disability. CONCLUSION OF LAW The cause of the Veteran's death was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1310, 5102, 5103, 5103A & 5107 (West 2002; 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In the context of a claim for dependency and indemnity compensation (DIC) benefits, section 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 section 5103(a)-compliant notice. In correspondence dated in June 2006 and March 2008, VA informed the appellant of what evidence was required to substantiate her claim, and of her and VA's respective duties for obtaining evidence. VA did not inform her that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. Nevertheless, the Board finds that the notice was legally correct for the appellant's claim, since a grant of service connection for the cause of the Veteran's death would not result in a disability rating. The lack of notice of the effective date provisions was harmless given that service connection is being denied, and hence no effective date will be assigned. The VCAA duty to notify has not been satisfied with respect to the first and third elements of Hupp notice. The Board finds that the notice errors did not affect the essential fairness of the adjudication. The January 2007 rating decision and September 2007 statement of the case provided the appellant notice of the first Hupp element. With respect to the third element, the appellant made it clear that she believes that the Veteran's death was caused by disabilities for which he was not previously service-connected at the time of his death. Further, the RO's June 2006 and March 2008 letters describe the type of evidence required to substantiate the appellant's claim regardless of it was based on a previously service-connected condition or a condition not yet service connected. Therefore, a reasonable person could be expected to understand what was still needed based on the notice provided. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005). As a result, the Hupp notice deficiencies do not affect the essential fairness of the adjudication. In addition, the appellant was represented by a service organization throughout her appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Further, during the May 2010 hearing before the Board the appellant specified that she had no additional information or evidence to give VA. As the appellant has specified that she has no additional evidence, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). This factor demonstrates that the appellant has submitted all evidence and/or information in her possession and thus the purpose of the VCAA was not frustrated. In light of the foregoing, no further development is required regarding the duty to notify. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). The Board concludes VA's duty to assist has also been satisfied. The Veteran's service medical records from his period of active service are unavailable. The record reflects that a response from the National Personnel Records Center (NPRC) reported that the records may have been destroyed in a 1973 fire. Inasmuch as the appellant was not at fault for the loss of these records, VA is under heightened obligation to assist the appellant in the development of her claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened obligation includes searching for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991); see also Cromer v. Nicholson, 455 F.3d 1346 (2006). The RO has undertaken the required procedures to reconstruct the Veteran's records from alternative sources, including requests to the NPRC and the Veteran and the Board finds that the duty to assist is discharged. Private and VA medical records identified by the appellant have been obtained, to the extent possible. The Veteran's death certificate has been associated with the claims file. The death certificate indicates that the Veteran died in his residence and no autopsy was performed. There is no indication that there are any outstanding terminal medical records. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service-connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the Board concludes a medical opinion is not needed in this case. As discussed below, the probative evidence of record does not indicate that the Veteran's cause of death may be associated with service or a service-connected disability. Thus, there is no reasonable possibility that a medical opinion would aid in substantiating the appellant's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board Travel Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim of service connection for the Veteran's death. The appellant was assisted at the hearing by an accredited representative from the Veterans of the Foreign Wars of the United States. The representative and the VLJ asked questions to ascertain whether any condition identified as the principal and contributing causes for the Veteran's death is related to his complaints or symptoms during and after service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or the representative. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for service connection for the Veteran's death. Neither the representative nor the appellant have suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). When a veteran dies from a service-connected or compensable disability, VA shall pay dependency and indemnity compensation to such veteran's surviving spouse, children or parents. 38 U.S.C.A. § 1310. Service connection for the cause of the veteran's death may be granted when the disability causing such veteran's death was incurred or aggravated while in military service, or he died during such service. See 38 U.S.C.A. § 1310(b). 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. 38 C.F.R. § 3.312. The principal cause of death is one which, 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). The contributory cause of death is one that contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). If the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran had active service during the Korean War from May 1949 to August 1952. The Veteran's death certificate reflects that he died in March 2006. The immediate cause of death is listed as atherosclerotic heart disease. Other significant conditions contributing to death included asthma, hypertension, diabetes, COPD, congestive heart failure and obesity. The appellant contends that service connection is warranted for various conditions that contributed to the Veteran's death, to include weakened muscle and associated neurological deficiencies due to frostbite of the hands and feet and COPD among others. After a careful review of the record, the Board concludes that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. At the time of the Veteran's death, the record reflects that he was service-connected for bilateral hearing loss and tinnitus. However, the medical evidence of record does not show, and the appellant does not contend, that the Veteran's cause of death was related to his service-connected bilateral hearing loss or tinnitus. Additionally, the Board notes that the Veteran's service-connected bilateral hearing loss or tinnitus did not affect a vital organ. Minor service-connected disabilities, particularly of a static nature or not involving a vital organ, are not held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312(c)(2). The Veteran's service-connected bilateral hearing loss was rated as noncompensable and his tinnitus was rated as 10 percent disabling, indicating they were relatively minor service-connected disabilities. Ultimately, there is no medical evidence linking the Veteran's service or service-connected bilateral hearing loss or tinnitus to the cause of the Veteran's death. Consequently, the Board finds that the Veteran's service-connected bilateral hearing loss or tinnitus was not a principal or contributory cause of death. The Board must now address whether the Veteran's cause of death was incurred in or aggravated by service, such that service connection would be warranted for the cause of death. As discussed above, while the Veteran's service treatment records are unavailable in this case, there is no evidence of record suggesting that his atherosclerotic heart disease was related to his service. The first medical evidence of record noting the Veteran heart condition is April 1988 private hospital reports reflecting that he was admitted for acute inferior wall myocardial infarction. The reports noted that he had a heart catheterization study within the previous year and that evidently no significant blockages were found. It was noted that he had a history of hypertension and diabetes for which he was taking medication. Since that time, the Veteran had recurrent chest pain in January 1990 at which time congestive heart failure was diagnosed. In April 1999, the appellant submitted a written statement to the effect that she had to quit her job to take care of the Veteran because he had several heart attacks and had been totally disabled since 1988. VA treatment records from July 2003 to July 2005 show that the Veteran was consistently diagnosed with coronary artery disease before his death. Regarding this diagnosis, a July 2003 VA treatment report noted that the Veteran had had elevated Creatine phosphokinase since 1996 and a July 2005 VA treatment report noted the Veteran's history of coronary artery disease with five cardiac catheterizations since 1988. However, none of this post-service medical evidence indicates a heart problem prior to 1988. Nor did the Veteran ever raise a claim for service connection for a heart disorder. As such, the lack of evidence weighs against the appellant's claim. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Further, there simply no opinion or other medical evidence linking the Veteran's heart disorder to his service. The Board considered the appellant's testimony during the May 2010 Board hearing that within one year from his service discharge, the Veteran experienced a heart attack at work for which he was transported to a hospital to receive treatment. The appellant stated that she was told that he suffered a heart attack due to stress. She also stated that he had another heart attack within a six month period. The appellant's daughter testified that the Veteran would talk about the anxiety or stress attacks he had experienced in service but that he was not sure whether it was heart- or stress- related. The appellant is competent to attest to the factual matters of which she had first-hand knowledge, such as the circumstances surrounding the claimed heart attack incidents that are alleged to have occurred shortly after the Veteran's service separation. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board has no reason to question the credibility of her statements. However, the claimed heart attack incidents that are alleged to have occurred shortly after the Veteran's service separation is a medical matter requiring medical evidence for its resolution. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade). As a layperson without demonstration of record of medical training, the appellant is not competent to provide an opinion requiring medical knowledge, such as a question of medical diagnosis of a heart attack. As a result, her assertions cannot constitute competent medical evidence that the Veteran incurred a heart attack within one year after service. The Board finds that without any contemporaneous medical evidence showing the exact diagnosis and nature of the claimed heart- or stress-related attacks, this evidence has very limited probative value as to whether the Veteran, at that time, had any heart disorder related to his service, especially because the medical evidence of record does not indicate a heart problem prior to 1988. Arteriosclerosis is listed as one of the chronic diseases under the provisions of 38 C.F.R. § 3.309 for which presumptive service connection is warranted if manifested to a compensable degree within one year following service separation. However, the appellant's statements are not probative as to whether the Veteran was diagnosed with arteriosclerosis within a year from his separation, and if so, whether it manifested to a compensable degree. Similarly, the evidence simply contains no medical evidence linking the Veteran's death to any of the contributing causes, including asthma, hypertension, diabetes, COPD, congestive heart failure and obesity. The Board considered the appellant's contentions that the Veteran's asthma and COPD, which are found to have contributed to his death, were incurred in service. To that effect, she contends that she met the Veteran while he was on active duty and observed that he had coughs ever since that time. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of varicose veins). However, whether the Veteran's coughs in service were as likely to have resulted from asthma or COPD that he had at the time of his death as some other cause or etiology for coughs is a medical matter requiring medical evidence for its resolution. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade). As a layperson, the appellant is not competent to provide an opinion requiring medical knowledge, such as a question of medical diagnosis of asthma or COPD. As a result, her assertions cannot constitute competent medical evidence that asthma or COPD was incurred in service. Consequently, the evidence of record does not establish that the Veteran's cardiac death or the contributing cause of asthma, hypertension, diabetes, COPD, congestive heart failure and obesity, are related to the Veteran's service. Additionally, while the appellant contends that the Veteran's muscle and neurologic deficiencies due to frostbite of the feet and hands contributed to his death, the medical evidence of record indicates otherwise. However, service connection for any muscle or neurologic disorder, including as secondary to frostbite of the feet and hands, is not established in this case. Moreover, as a lay person discussed above, the cause of death, which is typically determined by a medical physician, is not the type of disorder which is susceptible to a lay etiology. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377. Consequently, the Board does not find the appellant's assertion to be probative. In sum, a preponderance of the evidence of record is against a finding that the Veteran's cause of death was related to active service or his service-connected bilateral hearing loss or tinnitus. The Veteran's death certificate and his medical records prior to his death do not indicate that the Veteran's cause of death was related to service or his service-connected bilateral hearing loss or tinnitus. Although sympathetic to the appellant's claim, the Board concludes that the Veteran's service and service-connected disabilities did not cause or contribute to his death. Accordingly, the appellant's claim of entitlement to service connection for the cause of the Veteran's death must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs