Citation Nr: 1317256 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-37 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from November 1960 to April 1962. He died on October [redacted], 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the appellant appeared and provided testimony at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's "Virtual VA" file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died on October [redacted], 2007. 2. The Veteran's death certificate lists the immediate causes of his death as cardiac arrest and anoxic brain injury. 3. At the time of the Veteran's death, he was service-connected for tuberculosis, inactive, which was rated as 30 percent disabling. 4. It is not shown that a disease or injury of service origin played any role in causing or hastening the Veteran's death. CONCLUSION OF LAW Criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1131, 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as cardiovascular disease, if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). Service connection may also be established if the evidence of record, regardless of its date, shows that the Veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. See, e.g., Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. 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. The Veteran passed away on October [redacted], 2007. His death certificate lists the immediate causes of his death as cardiac arrest and anoxic brain injury. At the time of the Veteran's death, he was service connected for tuberculosis, pulmonary, inactive, which was rated as 30 percent disabling. The appellant essentially contends that the Veteran's cause of death, cardiac arrest and anoxic brain injury, was, in fact, caused by undiagnosed pericarditis, which was caused by his service-connected tuberculosis; or, in the alternative, his death was caused by undiagnosed ischemic heart disease caused by herbicide exposure while on active service. At the outset, the Board notes that while the appellant, as a lay person, is competent to report what comes to her through her senses, she lacks the medical training and expertise to provide a complex medical opinion as to what caused the Veteran's death. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the appellant's opinion alone is insufficient to establish that the Veteran's service connected tuberculosis or any possible exposure to herbicides was a contributory cause of his death. In support of her claim, the appellant and her daughter testified at the February 2013 Board hearing that at an employment physical for a trucking company held many years before his death, the Veteran was informed that he had a heart condition. However, there is no documentation of record to corroborate this testimony and as will be discussed below, medical evidence or record shows that other than hypertension, the Veteran did not have a documented heart condition. Additionally, the appellant has submitted various internet articles and medical treatises that discus the nature of tuberculosis and its causal relationship with pericarditis. These articles contain information indicating that pericarditis caused by tuberculosis may be difficult to diagnose and that in the past, tuberculosis was a common cause of pericarditis, but that with modern anti-tuberculosis therapy it has become less common. The Board notes that medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence "discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical treatise evidence that discusses a relationship in generic terms is insufficient to meet requirements for a medical nexus). In this regard, it is important for the appellant to understand that while the articles she has submitted describe the nature and etiology of both tuberculosis and pericarditis, and indicate a possible causal relationship between the two, they do not provide any evidence that the Veteran did in fact have a diagnosis of pericarditis at the time of his death. The information provided is not specific to the Veteran's case. It takes into account no other risk factors possibly suffered by this Veteran, any clinical findings of this Veteran, or any other specific information. Therefore, the Board finds these articles to be of little probative value. Of record are the Veteran's private treatment records from Kaiser Permanente from June 2000 to January 2007, which do have high probative value. These records indicate that during this period of time the Veteran received intermittent medical treatment for several health ailments. These records note the Veteran's significant history of hypertension and June 2005 treatment notes show that the Veteran suffered from a cerebrovascular accident (CVA) that was noted to be related to his hypertension. The Veteran's Kaiser Permanente records contain no indication that he complained of or received treatment for symptoms associated with any heart condition, including pericarditis or ischemic heart disease. Additionally, these records do not show that the Veteran was seeking any treatment for his service-connected tuberculosis, providing limited evidence against the claim that it was his service connected disability that caused his death. Private medical records from Potomac Hospital show that the Veteran was admitted on September 29, 2007 after being found comatose and unresponsive at his workplace. The Veteran was noted to be in ventricular tachycardia and was defibrillated and intubated, and later placed on ventilator support. A differential diagnosis at the time of admission of pulmonary embolism versus mycoardial infarction was assessed. The Veteran was noted to have a past medical history of hypertension, questionable history of a prior stroke, remote history of tobacco use, and prior history of prostate surgery. There was no mention of any significant history of active or inactive tuberculosis, providing more evidence against this claim. The Potomac Hospital records show that the Veteran was kept on ventilator support until October 14, 2007. Cardiology consultation noted significant elevation in cardiac enzymes 8 hours following the Veteran's admission to the hospital, for which medical management was suggested. There were no abnormalities found on pulmonary consultation. BUN and creatinine levels were elevated, for which nephrology recommended nutrition management through IV feedings and antibiotics to prevent infection. Neurology was consulted for the Veteran's anoxic brain injury and he was kept on Neurontin and monitored by electroencephalo-graphy (EEG); however, the EEG was not conclusive of any further life in his supratentorium. On October 14, 2007, after consulting with his treating physician, the Veteran's spouse and his family members made the decision to take him off ventilator support and the Veteran passed away on October [redacted], 2007. The records from Potomac Hospital contain no indication that the Veteran's cardiac arrest and anoxic brain injury was in any way related to symptoms that could be associated with pericarditis or ischemic heart disease. There is no mention in the records of the Veteran's treatment that his treating physician, or any of the consulted specialists, considered pericarditis or ischemic heart disease as a possible cause of the Veteran's cardiac event. These disabilities are not even cited, providing more evidence against this claim. Furthermore, the Board notes that chest X-ray, conducted when the Veteran was admitted to the hospital on September 29, 2007, showed that the Veteran's lungs were clear and there was no evidence of acute cardiopulmonary disease. There is no mention in the X-ray report that the Veteran exhibited any signs of active tuberculosis, providing highly probative objective evidence against this claim. Also of record is a May 2012 decisional letter from the RO which found that there was no evidence to support a finding that the Veteran had been exposed to herbicides while on active service, as such exposure to Agent Orange was not conceded. Therefore, even if the Veteran had been found to have ischemic heart disease, which he did not, presumptive service connection would not be applicable in this case. 38 C.F.R. § 3.309(e). In sum, there is no evidence of record indicating the Veteran had a heart disability at the time of his death that was related to his active service, to include pericarditis and ischemic heart disease. There is also no evidence of record that the Veteran's service-connected tuberculosis caused or contributed materially to the Veteran's cause of death. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the Veteran's cause of death is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a 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). Here, required notice was provided by a letter dated in January 2008, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. The letter failed to inform the appellant that the Veteran's only service-connected disability at the time of his death was his tuberculosis. However, to the extent that this constituted an error on the part of VA, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial; rather, the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not alleged that she was prejudiced in any way by VA's failure to specifically inform her that the Veteran was only service connected for his tuberculosis. Moreover, it is clear from the appellant's statements that she was well aware of the Veteran's service-connected disability, as she has referred only to the Veteran's tuberculosis in reference to his service-connected disability since filing her claim. As such, it is clear that the appellant had actual knowledge that the Veteran was only service-connected for tuberculosis, and any error in notice is considered to be harmless and non-prejudicial. The letter also did not inform the appellant how disability ratings and effective dates are established; but in light of the denial of her claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, a subsequent letter, sent in April 2012 provided the appellant notice in compliance with Dingess. As such, VA's duty to notify has been satisfied. As to VA's duty to assist, 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). In this case, the RO has obtained private treatment records from Kaiser Permanente ranging from June 2000 to January 2007, as well as the medical records from Potomac Hospital of the treatment he obtained following the cardiac event that led to his death in September and October 2007. The Veteran's death certificate was also obtained. Additionally, the appellant appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge in February 2013. A VA examination was not sought. However, while the appellant argued that the Veteran's tuberculosis caused him to develop pericarditis which led to his cardiac arrest; or in the alternative his cardiac arrest was caused by ischemic heart disease as due to herbicide exposure, such a conclusory and generalized lay statement is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the evidence of record fully addresses the requisite criteria for service connection, such that it cannot be said that there is insufficient evidence to decide the case. Additionally, there is no indication from the medical evidence of record, that the Veteran's death was related to his service-connected tuberculosis. Therefore, part three and part four of the McLendon test are not met. The best evidence does not suggest that the Veteran's death may have been caused, or contributed to by, a service connected disability and the treatment records provide what can only be described as overwhelming objective evidence against the appellant's central contention in this case. As such, the duty to provide an examination has not been triggered. The Board acknowledges the appellant's argument, made through her representative, that by not obtaining a VA medical examination, the RO has violated the holding in Colvin v. Derwinski, 1 Vet. App. 171 (1991). The question is not Colvin, but McLendon. In this regard, the Board observes that the appellant's representative misconstrues the holding in Colvin in presenting such an argument before the Board. In Colvin, the Court stated that the Board could consider only independent medical evidence to support its findings and could not reach its own unsubstantiated medical conclusions. If the medical evidence of record was insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board could (but was not required to) supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions to support its ultimate conclusions. Id. at 174. Here, the only evidence of record that supports the appellant's assertion that the Veteran's death was caused by pericarditis caused by his service-connected tuberculosis, or by ischemic heart disease caused by exposure to herbicides, are her assertions of such (in essence, it is the appellant making her own unsubstantiated medical conclusions), clearly not meeting the McLendon test for obtaining a medical opinion. There is absolutely no medical evidence of record which supports her claim. Further, as noted above, as a lay person, the appellant is not competent to render a medical opinion. See Jandreau, 492 F. 3d 1372. Therefore, the Board finds that the appellant's Colvin argument has no merit, and as noted above, the requirements for a VA examination as outlined by McLendon have not been met. Accordingly, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs