Citation Nr: 1301783 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 12-11 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York 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 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1954, and he died in December 2010. The appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for service connection for the cause of the Veteran's death, and denied entitlement to DIC. 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 on December [redacted], 2010 of complications of chronic obstructive pulmonary disease and pneumonia. 2. At the time of the Veteran's death, service connection was in effect for spondylolisthesis, evaluated as 60 percent disabling. A total rating based on individual unemployability due to service-connected disability (TDIU) had been in effect since December 20, 2000. 3. The competent and probative medical evidence shows that spondylolisthesis did not cause or substantially and materially contribute to cause the Veteran's death, nor did it render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. 4. The Veteran was not evaluated as totally disabled for ten continuous years immediately preceding his death, was not evaluated as totally disabled continuously from the date of separation from service and for a period of not less than five years immediately preceding his death, and was not a former prisoner of war. 5. The Veteran was not "entitled to receive" total disability compensation by way of any of the exceptions listed under 38 C.F.R. § 3.22(b). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22(a) (2) (i) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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). Notice was provided to the appellant in a February 2011 letter. The duty to assist has also been met. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA medical records, and the death certificate. The Board acknowledges that a VA medical opinion has not been obtained. In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). In DeLaRosa, the Federal Circuit held that an opinion was not needed where "the even more restrictive" test of 38 U.S.C.A. § 5103A(d) was not met. Id. Under the § 5103A(d) test, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). An appellant's assertion that one condition was caused by another is insufficient to trigger the duty to provide an examination or get an opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In the instant case, the only evidence relating the Veteran's death to a service connected disability consists of the appellant's rather vague opinion to that effect. Her opinion is insufficient to trigger the duty to obtain an opinion. Waters, DeLaRosa. There is no indication of evidence that service-connected disabilities caused or contributed to the cause of the Veteran's death. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant has been an active participant in the claims process by submitting evidence and providing argument. Thus, she has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Cause of death Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). 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. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). I. Cause of death The death certificate shows the Veteran died on December [redacted], 2010, of cardiopulmonary arrest due to complications of chronic obstructive pulmonary disease due to pneumonia and due to or as a consequence of advanced, progressive, worsening Alzheimer's dementia. It was also noted the Veteran was malnourished and bedbound. At the time of the Veteran's death, service connection was in effect for spondylolisthesis, evaluated as 60 percent disabling. The Veteran was granted TDIU effective December 20, 2000. The service treatment records are negative for complaints or findings pertaining to a lung disorder. On examination in February 1954, prior to the Veteran's discharge from service, the chest and lungs were evaluated as normal. A chest X-ray was negative. The Veteran was admitted to a VA hospital in November 1983 for progressive shortness of breath and wheezing for the last several days. He was known to have bronchial asthma and allergic rhinitis. It was reported he starting having wheezing for the last 1 1/2 years. He had been admitted to a VA medical center in September 1982 and was evaluated extensively for bronchial asthma. No significant positive finding was noted. The Veteran related a history of yellow sputum for one week. No other pertinent medical history was reported. The diagnoses were acute asthmatic bronchitis, chronic obstructive pulmonary disease and acute bronchitis. The Veteran was hospitalized by the VA in September 2010. It was noted he suffered from preexisting cognitive decline. He was admitted for coughing, poor responsiveness and a chest X-ray suggestive of a bibasilar infiltrate. It was noted his underlying chronic obstructive pulmonary disease was treated with medication. It was noted he weighed 171 pounds. The diagnoses were community-acquired pneumonia and chronic obstructive pulmonary disease. The Veteran was transferred to VA acute care facility in December 2010 for aspiration pneumonia, dehydration and progression of Alzheimer's disease with poor response to treatment and a poor prognosis. It was noted he had originally been admitted in September for dementia, and had developed pneumonia requiring antibiotics. It was indicated he was bedbound and malnourished. He died during the hospitalization. The appellant argues that the Veteran was confined to his bed during the last part of his life. She insists that if he had been able to get out of bed and do minor physical activities, he would not have developed the complications that led to his death. She argues his service-connected low back disability made it impossible for him to get out of bed and move. The appellant has expressed a belief that the Veteran's service-connected low back disability contributed substantially or materially to his death because it rendered him bedbound and led to the development of his medical complications. Lay witnesses are competent to testify as to their observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent these statements describe the pain the Veteran suffered due to this service-connected back disability, they are competent. The Board finds these statements are also credible. However, to whatever extent the appellant's assertions are being advanced to establish a medical relationship between the Veteran's death and his service-connected back disability, she lacks the requisite expertise to render an opinion as to whether the Veteran's service-connected disabilities contributed substantially or materially to his death by making him bedbound and thus leading to medical complications. These are complex medical questions and require a higher level of expertise. Jandreau, 492 F.3d at 1376-77. The record shows that the Veteran was in a cognitive decline when admitted to a VA facility in September 2010, and that he subsequently developed pneumonia. The record reflects the Veteran's fatal lung disorder had its onset many years after service, and there is no competent evidence linking it to service. In view of the foregoing, the Board finds the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). II. DIC When a veteran dies, not as the result of his own willful misconduct, and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability, and the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or the disability was continuously rated totally disabling for a period of not less than 5 years from the date of such veteran's discharge or other release from active duty, then VA shall pay DIC benefits to the surviving spouse in the same manner as if the veteran's death was service-connected. 38 U.S.C.A. § 1318. Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) the veteran's death was not the result of his or her own willful misconduct, and (2) at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. The Board acknowledges the Veteran's award of TDIU was effective December 20, 2000, and that he died on December [redacted], 2010, just five days short of having been in effect for 10 years. As such, the Veteran was not rated as totally disabled for a period of at least 10 years immediately preceding his death. The Board is sympathetic to the appellant's claim, but is bound by the 10-year statutory requirement. In light of the above discussion, the Board concludes that the appellant's claim for DIC under 38 U.S.C.A. § 1318 must be denied because the Veteran did not have a service-connected disability that was continuously rated as totally disabling for a period of 10 or more years immediately preceding his death. See Tarver v. Shinseki, 557 F.3d 131 (2009). Entitlement to these benefits must therefore be denied as a matter of law. Where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs