Citation Nr: 1314927	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  09-31 159	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel



INTRODUCTION

The Veteran served on active duty from January 1951 to December 1952.  The Veteran died on January [redacted], 2006.  The appellant is his surviving spouse.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO).

In December 2012, the Board remanded this case for additional notice.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

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 January [redacted], 2006, at the age of 76; the immediate cause of death as shown on the death certificate was respiratory arrest due to hypercapnia due to chronic obstructive pulmonary disease (COPD).  Sternal osteomyelitis was listed as another significant condition contributing to the Veteran's death, but not resulting in the underlying cause.  No autopsy was performed.

2.  At the time of his death, the Veteran was service connected for shell fragment wound of the left ankle with surgical amputation of the left foot at the ankle, shell fragment wound of the right foot with malunion of the metatarsal, and skin graft of the left thigh.  The combined evaluation was 60 percent and the Veteran was not in receipt of a total disability rating based on individual unemployability.  

3.  Hypercapnia, COPD, sternal osteomyelitis, and coronary artery disease were not present in service or etiologically related to service; coronary artery disease was not manifested within one year after discharge; and the preponderance of the evidence is against a finding that service-connected disabilities caused or contributed substantially or materially to his death.  


CONCLUSION OF LAW

A disability incurred or aggravated in service, a disability that may be presumed to have been incurred 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 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (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.

In the present case, complete notice was not issued prior to the adverse determination on appeal.  Indeed, in December 2012 the Board noted this error and remanded the case for proper notice.  Fully compliant notice was later issued in a January 2013 communication, and the claim was thereafter readjudicated in a March 2013 Supplemental Statement of the Case.  Accordingly, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).  Moreover, by issuing this notice, VA has complied with the December 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

Next, VA has a duty to assist the appellant in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, the appellant's statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Analysis

According to his death certificate, the Veteran died on January [redacted], 2006, at the age of 76.  The immediate cause of death as shown on the death certificate was respiratory arrest due to hypercapnia due to chronic obstructive pulmonary disease (COPD).  Sternal osteomyelitis was listed as another significant condition contributing to the Veteran's death, but not resulting in the underlying cause.  No autopsy was performed.

Service connection may be granted for the cause of the Veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death.  38 C.F.R. § 3.312(a).  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.  For a service-connected disability to constitute a contributory cause, 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.

Where the veteran served continuously for ninety (90) or more days during a period of war, and if arteriosclerosis became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

At the time of his death, the Veteran was service connected for shell fragment wound of the left ankle with surgical amputation of the left foot at the ankle, shell fragment wound of the right foot with malunion of the metatarsal, and skin graft of the left thigh.  None of these disabilities were listed on the death certificate as contributing to his death.  Similarly, the Veteran was not service connected for respiratory arrest, hypercapnia, COPD, or sternal osteomyelitis at the time of his death, which are the conditions indicated on his death certificate.

In this case, the appellant has argued that the Veteran was initially admitted to the hospital in December 2005 due to severe coronary artery disease, which she in turn attributes to his service connected disabilities.  The record does show that the Veteran's initial admission was for chest pains.  Thus, the appellant's claim is threefold.  First, she argues that the Veteran's lower leg amputation caused coronary artery disease.  Second, she argues that this coronary artery disease caused sternal osteomyelitis.  Finally, she argues that sternal osteomyelitis contributed substantially or materially to cause the Veteran's death.

With regard to her first contention, the Board is mindful of 38 C.F.R. § 3.310(c).  Under this regulation, ischemic heart disease of other cardiovascular disease developed in a veteran who has service connected amputation of one lower extremity at or above the knee or service connected amputations of both lower extremities at or above the ankles shall be held to be the proximate result of the service connected amputation or amputations.

The record, including the Veteran's service treatment records and the appellant's lay statements, shows that the Veteran's left leg was amputated six inches below the knee due to his injuries in service.  His right foot was also disabled, but was not amputated.  The appellant has raised an objection with the classification of the Veteran's left leg amputation as being "at the ankle."  While describing this lower leg amputation as "midway between the ankle and knee" may be more accurate, neither the medical evidence nor the appellant's own lay statements describe this amputation as at or above the Veteran's left knee.  As such, the Veteran's coronary artery disease is not automatically deemed the result of his left leg amputation under 38 C.F.R. § 3.310(c).

Nevertheless, the appellant submitted a statement from Dr. S.B., which stated that the "loss of a limb would certainly increase the possibility of causing some [of] the stress to his cardiovascular system."  This opinion does not indicate whether or not it is probable or likely as not that service-connected disability was implicated in the Veteran's death only that it would increase the possibility of stress to the cardiovascular system.  While this statement was too vague to qualify as a positive medical opinion, it was sufficient to trigger VA's duty to provide a medical opinion.  See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Thus, VA sought a medical opinion to determine whether such a causal connection existed in this case.  In an October 2009 opinion, the VA physician opined that the Veteran's heart disease was not likely due to his service connected left foot amputation.  The examiner reasoned that while bilateral foot amputations were known to cause cardiac conditions, unilateral amputations were not.  It is clear from this opinion that the service-connected amputation of the left lower extremity was not likely implicated as a cause of the coronary artery disease.  

Given that the record does not support a finding that the Veteran's coronary artery disease was secondary to his service connected disabilities, further discussion of whether his coronary artery disease or sternal osteomyelitis contributed substantially or materially to cause the Veteran's death is unnecessary.  Additionally, the Board finds that the record does not suggest that the Veteran's respiratory arrest, hypercapnia, or COPD were caused by his military service.

To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability.  See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In this regard, the Veteran's death certificate provides sufficient evidence of respiratory arrest, hypercapnia, or COPD.  However, these conditions are not shown in the Veteran's service treatment records or for many years after service.  Thus, the record does not show and the appellant has not alleged any in-service occurrence or aggravation of a disease or injury.  Absent any such in-service incident, direct service connection cannot be established.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon, 20 Vet. App. 79.

As the Board has found that the Veteran's respiratory arrest, hypercapnia, and COPD are not service connected, and the Veteran's service connected disabilities have not been implicated in his death, service connection for the cause of the Veteran's death is not warranted.

For the reasons provided above, the preponderance of evidence is against the appellant's claim.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

ORDER

Service connection for the cause of the Veteran's death is denied.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs