Citation Nr: 1317733 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-45 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from January 1967 to June 1970, with service in the Republic of Vietnam. He died on May [redacted], 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). 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 May [redacted], 2007. 2. The Veteran's death certificate lists the immediate cause of his death as anoxic encephalopathy with multiple pelvic, rib, and sternal fractures, visceral contusions, possible cervical spine injury, and blunt force injury to the trunk and neck. 3. The Veteran's death certificate lists other significant conditions contributing to death, but not resulting in the underlying immediate cause as hypertensive cardiovascular disease and diabetes mellitus. 4. At the time of the Veteran's death, he was service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling, and type II diabetes mellitus, rated as 20 percent disabling. 5. 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. §§ 1110, 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. §§ 1110 1101, 1112, 1113; 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 May 12, 2007. His death certificate lists the immediate cause of his death as anoxic encephalopathy with multiple pelvic, rib, and sternal fractures, visceral contusions, possible cervical spine injury, and blunt force injury to the trunk and neck. Also listed on his death certificate as contributory causes of death, but not resulting in the underlying immediate cause as hypertensive cardiovascular disease and diabetes mellitus. At the time of the Veteran's death, he was service connected for PTSD, rated as 50 percent disabling, and type II diabetes mellitus, rated as 20 percent disabling, with a combined disability rating of 60 percent. The appellant contends that as diabetes mellitus was listed on the Veteran's death certificate as a condition contributing to his death, although not resulting in his cause of death, service connection for the cause of the Veteran's death is warranted. The appellant has also asserted that the various medications the Veteran had been prescribed by the VA Medical Center contributed to his cause of death. Overall, the Board must find the appellant's lay contentions regarding medical causation to be of highly limited probative value. Specifically, in an October 2009 statement, the appellant stated that the side effects of these various medications included dizziness, drowsiness, changes in vision, lightheadedness, and may have made it difficult to operate heavy machinery. How the medication used to treatment the Veteran's diabetes and PTSD caused this is not made clear by the appellant. Private medical records from Harborview Medical Center show that the Veteran was transferred from Forks Community Hospital in Forks, Washington by helicopter air transport on May 9, 2007. The Veteran was noted to have been the driver in a single vehicle high speed motor vehicle crash at approximately 1:00 AM on May 9, 2007. He was found stuck in his vehicle at the scene at approximately 5:00 AM on May 9, 2007. He was noted to be awake and alert and complained of right hip and right ankle pain. The emergency medical staff noted significant damage to the steering wheel and starring of the windshield. The Veteran was found to have right pelvic and right ankle fractures and was transferred to Harborview Medical Center for care. During transport, the Veteran had shortness of breath and desaturations, and upon arrival at Harborview he was apneic, lost his pulse, and cardio pulmonary resuscitations were performed for 15 minutes until a definitive airway was placed by anesthesia in the emergency department. The records show that after examination in the emergency department at Harborview Medical Center, the Veteran was found to have the following acute traumatic injuries: right acetal fracture; widened sacroiliac joints; widened symphysis; sternal fracture; mediastinal hematoma; anoxic brain injury; possible splenic laceration; atlanto-occipital asymmetry; left rib fractures 3 through 7; and right rib fractures 2 and 3. The Veteran's medical history, including his diabetes mellitus, was noted. The records indicate that over the course of the Veteran's treatment he was evaluated by orthopedics for his pelvis injury and a possible spine injury. He was also evaluated by neurology. He was noted to have a worsening neurologic examination over the course of his stay and he was found to be brain dead on the first brain death examination. The Veteran's family made the decision to transition him to comfort care and shortly afterward he was found to be pulseless, apneic, and without corneal reflexes. The Veteran passed away on May 12, 2007. In August 2012, a VA medial opinion was obtained. After review of the Veteran's claims files, which included pertinent medical treatment records, the examiner noted that the Veteran's cause of death was multiple trauma as a result of the May 2007 motor vehicle accident. The VA examiner opined that the Veteran's diabetes mellitus did not contribute substantially or materially to the Veteran's death. The Board acknowledges that the VA examiner has not provided a very strong supporting rationale for her opinion against this claim. However, the Board notes that the Veteran's diabetes mellitus was only rated as 20 percent disabling at the time of his death and the appellant has supplied no support for her medical opinion. VA treatment notes of record show that the Veteran's diabetes mellitus was well controlled with medication and was only noted to not be in control when he was non-compliant with his prescribed medication. In providing her opinion, the VA examiner specifically stated that she had reviewed the claims files, which included the pertinent medical evidence. The Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for the cause of the Veteran's death is not warranted. In this regard, the medical evidence of record indicates that the Veteran's death was the result of the multiple traumatic injuries he sustained during the May 2007 motor vehicle accident. The Board acknowledges that the diabetes mellitus is listed on the Veteran's death certificate as a significant condition contributing to death but not resulting in the underlying cause; however, the records of his treatment at Harborview Medical Center following the motor vehicle accident provide no indication that his diabetes mellitus complicated his treatment or condition, or substantially or materially contributed to his death. Furthermore, the VA examiner, after review of the claims files, specifically opined, that diabetes mellitus did not substantially or materially contribute to the Veteran's death. Additionally, the Board acknowledges that appellant's insinuation in her October 2009 statement that the Veteran's prescription medication may have led to the May 2007 motor vehicle accident. However, the Board finds that there is no evidence to support this argument. The medical evidence or record does not provide any information regarding the cause of the Veteran's motor vehicle accident and the appellant's suggestion that the side effects of his medication could have caused him to crash his vehicle is mere speculation, and is therefore not probative. She herself has never indicated that the medication used to treat his service connected condition had caused him a problem driving in the past. Treatment records indicate no such problem. In sum, there is no evidence of record indicating the Veteran's diabetes mellitus substantially or materially contributed in any way to his death, which was caused by the multiple traumatic injuries sustained in the May 2009 motor vehicle accident. Furthermore, there is no evidence that the Veteran's prescription medication and its side effects were the cause of the May 2009 motor vehicle accident. 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 letters dated in June 2007 and September 2008, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. The June 2007, which was sent prior to the initial adjudication in this matter, failed to inform the appellant that the Veteran's only service-connected disabilities at the time of his death were his PTSD and diabetes mellitus. 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 his PTSD and diabetes mellitus. Moreover, it is clear from the appellant's statements that she was well aware of the Veteran's service-connected disabilities, as she has referred to the Veteran's PTSD and diabetes mellitus in reference to his service-connected disabilities since filing her claim. Additionally, she has only referred to the Veteran's service-connected diabetes mellitus in her contentions that such disability was a contributing condition to his cause of death. As such, it is clear that the appellant had actual knowledge that the Veteran was only service-connected for PTSD and diabetes mellitus, and any error in notice is considered to be harmless and non-prejudicial. The letters 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 the medical records from Harborview Medical Center of the treatment he obtained following the Motor Vehicle Accident that led to his death in May 2007. The Veteran's death certificate was also obtained. Additionally, VA obtained a medical opinion in August 2012. 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