Citation Nr: 1301528 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-33 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from December 1940 to July 1967. He died in October 2007. The appellant is his surviving spouse. This matter came to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a Board hearing in March 2012; a transcript of the hearing is of record. FINDINGS OF FACT 1. A certificate of death reflects that the Veteran died in October 2007 and lists the immediate cause of death as consequences of fall with splenic rupture. 2. At the time of the Veteran's death, he was service-connected for residuals of prostate cancer associated with exposure to herbicides, rated as 60 percent disabling; a residual scar from a gunshot wound to the right thigh, rated as 10 percent disabling; right hip osteoarthropathy associated with the residual scar from a gunshot wound to the right thigh, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; a post operative residual scar from a herniorrhaphy, rated as noncompensable; and residuals of a scar on the right lung, rated as noncompensable. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities was also awarded, effective May 21, 2003. 3. A splenic rupture was not present during the Veteran's military service, and the preponderance of evidence is against a finding that the Veteran's cause of death is related to his service. 4. The Veteran's service-connected disabilities, to include his right thigh scar and right hip osteoarthropathy disabilities, did not cause his death or contribute materially or substantially to the cause of his death. 5. The Veteran did not have a disability that was continuously rated totally disabling for a period of 10 years or more immediately preceding death; he was not rated totally disabled continuously after his discharge from service in July 1967 and for a period more than 5 years immediately preceding death; he was not a former prisoner of war; nor has there been allegation of clear and unmistakable error in any rating action made during the Veteran's lifetime. CONCLUSIONS OF LAW 1. 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, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2012). 2. The criteria for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2002); 38 C.F.R. §§ 3.22, 20.1106 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In the present case, VA provided the appellant with the notice required by the VCAA in December 2007. In the notice letter the RO informed her of the evidence required to substantiate her claim, the information required from her to enable VA to obtain evidence on her behalf, the assistance that VA would provide to obtain evidence on her behalf, and that she should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on her behalf. The appellant was asked to provide medical evidence showing a reasonable probability that the condition that contributed to the Veteran's death was caused by an injury or disease that began during service. Although the appellant was not specifically informed of the Veteran's service- connected disabilities, she demonstrated actual knowledge of this fact in her statements to VA. In her June 2008 notice of disagreement, she asserted that the Veteran's "right leg/hip" gave out, noting that both were service connected, causing the fall, which caused a splenic laceration. The appellant and her representative reiterated this assertion throughout the appeal. Therefore, there can be no question that she knew that the Veteran received service-connected compensation for his right leg scar and right hip disabilities and that she needed to show that these service-connected disabilities caused or contributed to the Veteran's death. The defective notice has caused no prejudice. Regardless of any defect in the notice, the appellant demonstrated her affirmative understanding of what was necessary to substantiate her claim in written statements and during the March 2012 hearing. Thus, the purpose of the notice, to ensure that she had the opportunity to participate meaningfully in the adjudication process, was not frustrated. She had actual knowledge of what was necessary to substantiate her claim prior to the Board's consideration of this matter, ensuring the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) (holding that actual knowledge by the claimant cures defect in notice). See Hupp, supra. Finally, the Board notes that the appellant was sent another letter outlining notice required by the VCAA and Hupp in February 2010. The claim was readjudicated in a March 2010 statement of the case after the appellant received notice and had opportunity to respond. Therefore, the delay in providing the necessary notice did not result in any harm to the appellant. Mayfield v. Nicholson, 444 F.3d 1328 (2006). Moreover, all available evidence pertaining to the appellant's claim has been obtained. The record before the Board contains private treatment records, a death certificate, the appellant's statements, fee-basis VA examination reports, and service treatment records. In addition, a VA medical expert opinion has been obtained and is associated with the claims folder. Neither the appellant nor her representative has identified any additional pertinent available evidence to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the appellant in the development of the facts pertinent to this claim. II. Service connection for the cause of the Veteran's death The appellant is claiming entitlement to service connection for the cause of the Veteran's death. The cause of a veteran's death will be considered to be 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(a). This question will be resolved by the use 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). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a 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). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). The Board notes that during the Veteran's lifetime service connection was in effect for residuals of prostate cancer associated with exposure to herbicides, rated as 60 percent disabling; a residual scar from a gunshot wound to the right thigh, rated as 10 percent disabling; right hip osteoarthropathy associated with the residual scar from a gunshot wound to the right thigh, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; a post operative residual scar from a herniorrhaphy, rated as noncompensable; and residuals of a scar on the right lung, rated as noncompensable. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities was also granted, effective May 21, 2003. The appellant asserts that the Veteran's service-connected right leg disabilities, a residual scar from a right thigh gunshot wound and right hip osteoarthropathy, caused the fall that resulted in a ruptured spleen. She testified in March 2012 that the Veteran's service-connected right hip and right thigh scar disabilities hurt all the time. The Certificate of Death reflects that the Veteran's immediate cause of death in October 2007 was consequences of fall with splenic rupture. Chronic lower respiratory disease was listed as another significant condition contributing to death but not resulting in the underlying cause. An outpatient private treatment record dated in early July 2007 documents the Veteran's report of increased left knee pain for the past four years, stating that he reached the limit of his tolerance for the pain and requesting steroid injections. Physical examination findings included left knee swelling with probable effusion, and prior x-rays showed advanced osteoarthritis. On examination of the right knee, there was full range of motion without pain. The assessment included osteoarthritis and coronary artery disease, which was noted to be stable without complaint. Private treatment records reflect that on July 26, 2007, the Veteran was admitted after falling from a standing height onto his right side. He denied loss of consciousness. His orthopedic injury was a left minimally displaced transverse patellar fracture. The left knee was aspirated and subsequently injected with 10 mL of 1 percent lidocaine. Soon after presenting to the emergency department, he also reported abdominal pain. A CT scan revealed that he had sustained a splenic laceration with active extravasation. Accordingly, he underwent a splenectomy on August 1, 2007. On August 19, 2007, he was found down at a skilled nursing facility and brought to the emergency department, which discovered a bilateral pulmonary embolism. On further evaluation, he described left knee soreness. Upon discharge the next day, the impression was multiple bilateral pulmonary emboli with a pocket of air seen at the tricuspid valve and no evidence of DVT; bilateral thyroid hypodensities; bilateral small pleural effusions; cholelithiasis without evidence of cholecystitis; left nephrolithiasis; diverticulosis without evidence of diverticulitis. On October 3, 2007, the Veteran was admitted in extremis. He was treated aggressively with IV fluids as a base management with various IV solutions and massive pressors to include dopamine and Levophed. Over the course of the day he seemed improved. However, his abdominal symptoms seemed to progress. There was marked tenderness in the lower quadrant, particularly on the left, which was significantly painful. He was deemed too sick for surgical intervention though the underlying pathology was suspected to be ischemic bowel. Early on October 4, he was doing fair and communicating with the nurse until he developed ventricular tachycardia and then asystole. He was pronounced dead. The primary cause of death was shock and the underlying cause of death was ischemic bowel. Other contributing illnesses included chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), and pulmonary embolism. Initially, the Board notes that service treatment records do not reflect a diagnosis of splenic rupture or other spleen problems. The post-service medical evidence reflects that splenic rupture was initially diagnosed in July 2007, thus approximately 40 years after separation from service. Evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the Veteran's health and medical treatment during and after military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Based on the record, the Board must conclude that the clear preponderance of the evidence is against a finding that the Veteran's splenic rupture manifested during service or that it was otherwise directly related to his active service. In August 2012, a VA opinion was proffered by a Chief of Orthopedics based on a review of the Veteran's claims folders. The VA examiner opined that it would be speculation to say that the hip arthropathy caused the fall leading to splenic rupture leading to death, adding that if this were true millions of people with hip arthritis all around the world would have splenic ruptures, which is not the case. Supporting the conclusion, the examiner outlined objective findings from a January 2006 VA fee-basis examination in which the right hip had flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees and abduction to 45 degrees; radiographs revealed moderate arthritis of the hip. The Orthopedist remarked that the Veteran had not had surgical intervention on the hip presumably because he was able to manage with the symptoms. The examiner also opined that it would be speculation to say that a residual scar from a gunshot wound to the right thigh caused or contributed substantially or materially to the Veteran's death. The examiner noted that medical evidence of record documented a retained fragment and a scar 5cm x [0.5] cm with no evidence of loss of deep fascia or muscle substance. Although the examiner phrased the opinions in speculative language, the accompanying medical rationale reflects the conclusion that neither the right hip arthropathy nor the right thigh scar caused or contributed substantially or materially to the fall leading to the cause of death due to splenic rupture. The Board accepts the VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). In addition, the opinion is consistent with contemporaneous medical evidence of record, which reflects the Veteran's subjective reports of increasing left knee pain just weeks before the Veteran's July 2007 fall. Moreover, there is no contrary medical opinion of record. Throughout the current appeal, the appellant contends that the Veteran's service-connected right thigh and right hip disabilities contributed to his death from a splenic rupture by causing him to fall. The appellant testified that the Veteran's right leg hurt all the time. The appellant is competent to testify as to any observations she made about the Veteran experiencing pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As a lay person, however, she is not competent to offer opinions on a medical diagnosis or causation, including the cause of the Veteran's death. See Moray v. Brown, 5 Vet. App. 211 (1993). Moreover, the Board points out that in the weeks proceeding the fall in July 2007, the Veteran complained of left leg pain to his doctor, and he was noted to have advanced osteoarthritis; he did not identify right leg or hip problems. These facts appear to contradict the appellant's assertion that the Veteran was in constant pain due to his right leg disabilities, each rated as 10 percent disabling, and that these disabilities caused him to fall. Therefore, the Board finds the opinions of the VA examiner to be of greater probative value than the appellant's lay assertions. As the condition that caused or contributed to the Veteran's death was not shown in service, and the records contain no suggestion of a causal link between his death and active service, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death. In sum, the Board is compelled to conclude that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death. It follows that the Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C.A. § 5107(b). Therefore, the claim must be denied. III. Entitlement to DIC under 38 U.S.C.A. § 1318 DIC may be awarded to a surviving spouse upon the service-connected death of the veteran. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a). If, as here, the Veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22. The service-connected disability(ies) must have been either continuously rated totally disabling for 10 or more years immediately preceding death, or continuously rated totally disabling for at least 5 years from the date of the veteran's separation from service. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22. Benefits are also payable if the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b)(3). Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106. 38 C.F.R. § 3.22 also restricts the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for clear and unmistakable error (CUE) in the adjudication of a claim or claims. As explained above, the Veteran died in October 2007. At that time, service connection was in effect for residuals of prostate cancer associated with exposure to herbicides, rated as 60 percent disabling; a residual scar from a gunshot wound to the right thigh, rated as 10 percent disabling; right hip osteoarthropathy associated with the residual scar from a gunshot wound to the right thigh, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; a post operative residual scar from a herniorrhaphy, rated as noncompensable; and residuals of a scar on the right lung, rated as noncompensable. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities was also granted, effective May 21, 2003. This is less than the statutory requirement for benefits under U.S.C.A. § 1318. Moreover, the Veteran was not continuously rated totally disabled for 10 or more years immediately preceding death, or continuously rated totally disabled for at least 5 years from the date of separation from service. Therefore, compensation under this provision is denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC pursuant to § 1318 is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs