Citation Nr: 1316607 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-09 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to January 1968. The Veteran died in February 2007, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2011, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. She appealed this denial to the Court of Appeals for Veterans Claims (Court). In August 2012, the parties filed a joint motion for remand (JMR) regarding this issue. The appeal has now returned to the Board for further development. FINDINGS OF FACT 1. The Veteran died in February 2007. The cause of death listed on his death certificate was myocardial infarction and coronary artery disease. 2. The preponderance of the evidence indicates that the Veteran was not diagnosed with coronary artery disease or myocardial infarction during service or within one year of separation from service. 3. Service connection was not in effect for any disability at the time of the Veteran's death. 4. The preponderance of the evidence establishes that the Veteran did not have a service-connected disability that was the principal or contributory cause of the Veteran's death, nor did such a disability hasten his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1116, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, the VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the appellant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the appellant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the appellant is expected to provide; and (4) request that the appellant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the appellant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in September 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The appellant was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letter informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the appellant how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310 DIC, the Court held that 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 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 (2007). The Court also held that a 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. Id. The September 2008 letter informed the appellant as to the conditions for which the Veteran was service-connected at the time of his death (none), what information and evidence was needed to support a claim for DIC. As such, the Board concludes that the letter provided the information to the appellant prescribed in Hupp. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the appellant over the course of this appeal, the appellant clearly has actual knowledge of the evidence she is required to submit in this case; and (2) based on the appellant's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the appellant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the appellant was continuously represented by an experienced national service organization, and is currently represented by experienced private counsel. She has submitted argument in support of her claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the appellant has actual knowledge as to the information and evidence necessary for her to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the appellant are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time otherwise referenced outstanding records that she wanted VA to obtain or that she felt was relevant to the claims. 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. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the claims file was sent for an opinion by a Veteran's Health Administration (VHA) specialist in January 2013. The specialist considered the Veteran's service treatment records, post-service treatment records, and the appellant's contentions. Based on the foregoing, the specialist concluded that the Veteran's death was not due an event, disease, or injury incurred during active service and he did not have hypertension during his military service. Therefore, as the opinions were based on review of the claims file, including the appellant's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the appellant's claim for service connection for the cause of the Veteran's death. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the appellant's claim. Given the January 2013 VHA opinion and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with the Court-ordered JMR directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain diseases, to include organic heart conditions, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board notes the claims file does not include a diagnosis of any heart disorder in service or within one year of service. As such, service connection on a presumptive basis is not warranted for any heart disability. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, 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 service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran 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). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis The appellant is claiming entitlement to service connection for the cause of the Veteran's death. She maintains that in-service elevated blood pressure readings were a precursor to the Veteran's heart disease that ultimately led to his death. She further alleges that the Veteran was exposed to stress and environmental hazards in the military, and that such exposure led to the Veteran's development of coronary artery disease, which ultimately caused his death from a myocardial infarction. In the instant case, the Veteran died in February 2007, or approximately 39 years after his separation from service, at the age of 71. The Veteran's February 2007 death certificate listed the Veteran's cause of death as myocardial infarction due to coronary artery disease. At the time of his death, the Veteran was not service-connected for any disability. The appellant essentially contends that "the stresses of the military along with other environmental hazards he may have been exposed to while being stationed in Korea, Japan, [and the] United States" caused his coronary artery disease, which ultimately led to his death. The Veteran's service treatment records are silent for any treatment for or complaint of coronary artery disease or myocardial infarction. The service treatment records show the following blood pressure readings: May 1954: 130/76 October 1957: 130/80 February 1962: 130/85 November 1963: 144/90 November 1967: 134/76 The examination report at service discharge in November 1967 noted that the Veteran's lungs and chest, heart, and vascular system were normal. The Veteran's sitting blood pressure readings were 134 systolic and 76 diastolic. It does not appear that the Veteran was diagnosed as having hypertension within his first post-service year. Following service, the Veteran was treated for a stroke in October 1995. He was noted to have "long standing hypertension," but the date of its onset was not listed. He was diagnosed as having acute pulmonary embolus, with documented deep vein thrombosis of the left lower extremity, status-post cerebrovascular accident (ischemic not hemorrhagic), with post cerebrovascular accident edema. At the time of his treatment, his blood pressure reading was 150/100. Since 1995, the Veteran had been treated for hypertension (in some instances severe and uncontrolled) and coronary artery disease. However, the first documented post-service clinical evidence demonstrating a diagnosis of a coronary problem appears many years after the Veteran's separation from service. Treatment notes from July 2003 state that the Veteran underwent imaging in January 2001 (or 33 years after separation from service) that revealed abnormal myocardial profusion "likely representing some degree of coronary artery disease." In September 1995, or 27 years after service, the Veteran was treated for a large cerebral infarct. Treatment records from that time indicate that the Veteran had "a history of hypertension." Although, the Veteran reported to treating professionals that he received treatment for hypertension as early as 1971, there are no medical treatment records prior to 1995 definitively establishing a date of onset of hypertension. In a May 2006 Ambulatory Care Assessment form, the Veteran self-reported that he was hospitalized for high blood pressure in 1971, or three years after service. As noted above, the appellant's claim was sent for a VHA specialist's opinion regarding the Veteran's elevated blood pressure reading in service and whether it was a precursor for the coronary artery disease that ultimately led to his death. Following review of the Veteran's claims file, including the pertinent blood pressure readings, the specialist opined that the Veteran's blood pressure readings in service did not warrant a diagnosis of hypertension. In so concluding, he indicated that the Veteran only had one elevated reading (144/90), but it was followed by a normal value (134/76). He further indicated that the 144/90 reading would not be considered in the hypertensive range because it is not preceded, or followed by, two to three, similar, equal, or higher readings. As to the question of whether any disease or injury in service was the principal or contributory cause of the Veteran's death, the specialist opined that there was not any service-related injury that caused the Veteran's death. In reaching this conclusion, the examiner noted that the first notation of a history of hypertension was in 1971, but without any specific blood pressure number mentioned. The specialist also concluded that after review the evidence of record, it suggests that the consistent rise in blood pressure was noted during or after 1995. As such, the specialist ultimately opined that it is less likely than not that the Veteran's the blood pressure readings in service either caused or substantially/materially cause his death. There is no clinical opinion to the contrary. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the cause of the Veteran's death was due to a service-connected disability. In other words, the Board finds that the Veteran did not have any service-connected disabilities that contributed substantially and materially to his death, combine to cause his death, or aid and lend assistance to the production of his death. First, as there was no evidence of a chronic hypertensive or other coronary condition at the time of separation from service or for the one-year presumptive period thereafter, a showing of continuity of symptoms after discharge is required to support the claim for service connection for the cause of the Veteran's death. See 38 C.F.R. § 3.303(b) (2012). In other words, there is no competent evidence of record indicating that the Veteran received treatment for coronary artery disease or myocardial infarction within one year of separation from service to warrant presumptive service connection. The only competent, clinical opinion of record does not find any link between the Veteran's in-service blood pressure readings, subsequent hypertension diagnosis, and the coronary artery disease that caused his myocardial infarction and ultimately his death. The January 2013 specialist's opinion was made following review of the relevant records and based upon his expertise as a chief cardiologist. He provided a detailed rationale for his opinions. As such, the Board finds this January 2013 specialist's opinion both credible and highly probative as to the element of nexus. Additionally, neither the appellant nor her representative has presented, identified, or alluded to the existence of any medical evidence or opinion that directly contradicts the VA specialist's conclusions. The Board is sympathetic to the appellant in that it is clear she sincerely believes her spouse's death was caused by stress and his one high blood pressure reading during service. However, the most probative medical evidence of record does not support these contentions. As a lay person who has not been shown to be capable of making this specific medical conclusion, the appellant's statements that the Veteran's in-service stress and blood pressure readings caused his coronary artery disease that ultimately contributed to his death are substantially outweighed by the conclusions of January 2013 VHA specialist's opinions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In addition, the Board has considered the argument submitted by the Veteran's representative that the VHA specialist's opinion is inadequate because it does not specifically discuss whether the Veteran's in-service blood pressure readings contributed to coronary artery disease. The record has documented how the Veteran's coronary artery disease was preceded by his uncontrolled hyperlipidemia and hypertension. The specialist indicated that he reviewed the Veteran's treatment records and "available data" to render his opinion as to whether the in-service blood pressure readings caused or substantially contributed to the Veteran's death that was caused by myocardial infarction due to coronary artery disease. In short, the most probative medical evidence specifically rules out a relationship between the Veteran's cause of death (myocardial infarction and coronary artery disease) and his in-service blood pressure readings. The Board places more weight on the opinion of the competent VA medical professional who provided the January 2013 opinions, based on review of the medical records and claims file, than on the appellant's lay assertions that the Veteran's in-service stress and blood pressure readings caused his coronary artery disease, myocardial infarction, and death. As such, service connection for the cause of the Veteran's death is not warranted. Given this evidentiary picture, the preponderance of the evidence is against finding that any service-connected disorder had a causal connection to the Veteran's death. Although the appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs