Citation Nr: 1319216 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-30 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from October 1944 to November 1946. He died on February [redacted], 2008. The appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2012. A transcript of the hearing is associated with the claims file. 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 February [redacted], 2008, at the age of 82; the immediate cause of death as shown on the death certificate was congestive heart failure due to diabetes mellitus. No other significant conditions contributing to death but not related to the cause were noted. No autopsy was performed. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) and malaria, rated 70 and 0 percent disabling, respectively. 3. Congestive heart failure and diabetes mellitus were not present in service, manifested within one year after discharge, or etiologically related to service; and the preponderance of the evidence is against a finding that the Veteran's 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, 444 F.3d 1328; 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. Here, the appellant was sent a letter in August 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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, his statements in support of the claim are of record, including testimony provided at a September 2012 hearing before the undersigned. 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. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the September 2012 hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the relationship between the Veteran's service-connected PTSD and his fatal disabilities. Ultimately the Board sought a medical opinion. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. 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 February [redacted], 2008, at the age of 82 at Decatur Memorial Hospital. The immediate cause of death as shown on the death certificate was congestive heart failure due to diabetes mellitus. 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. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) and malaria. Neither of these disabilities was listed on the death certificate as contributing to his death. Similarly, at the time of his death, the Veteran was not service connected for congestive heart failure or diabetes mellitus, which are the conditions indicated on his death certificate. As the Veteran was not service connected for congestive heart failure or diabetes mellitus at the time of his death, the Board must first address whether he was entitled to service connection for either disability. In doing so, the Board notes that the Veteran himself had submitted a claim of service connection for both disabilities in September 2004, due to radiation exposure from "clean[ing] up the atomic bomb" while aboard the U.S.S. Polk. These claims were denied in a May 2005 rating decision as neither of these conditions are among those for which an association with ionizing radiation has been established and no other evidence linking either disability to the Veteran's military service. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance; therefore it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(b), 20.1103. That decision did not address the appellant's current contentions that the Veteran's fatal congestive heart failure was caused by his service connected PTSD. Below, the Board will address entitlement to service connection on both a direct and secondary basis. 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 congestive heart failure and diabetes mellitus. However, neither condition is shown in the Veteran's service treatment records. In his August 2006 statement the Veteran had alleged a diabetic attack that resulted in hospitalization in the Philippines during his military service. While the Veteran was competent to provide lay evidence of an in-service hospitalization, the Board finds this allegation not credible. This allegation of hospitalization is not corroborated by the service treatment records and it contradicts the medical history provided at the time of his August 1996 VA Systemic Conditions Examination, a decade earlier, which noted a 20-year history of the disease (approximately 1976, about 30 years after separation). See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As such, the Board does not find competent and credible evidence of an in-service occurrence of either congestive heart failure or diabetes mellitus. As noted above, the Veteran had previously alleged entitlement to service connection for both conditions due to radiation exposure. As neither disability is one of the listed diseases specific to radiation-exposed veterans, presumptive service connection is not warranted under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Similarly, neither disability is among those listed as a radiogenic disease under 38 C.F.R. § 3.311(b)(2) and no competent scientific or medical evidence has been provided suggesting that either condition is a radiogenic disease. Thus, service connection is not available under 38 C.F.R. § 3.311(b). Finally, the claim has been reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). In this regard, the Board notes that the record does not contain a positive medical nexus opinion causally linking either disability to the Veteran's radiation exposure. Indeed, the April 2005 VA examiners provided negative opinions. There is no positive nexus opinion of record to rebut these findings. Additionally, the appellant does not allege, nor does the record suggest, that the Veteran had continuous symptoms of either condition dating back to his separation from service. See 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), including diabetes mellitus and cardiovascular-renal disease). Instead, the record first notes heart problems, although not described as a cardiovascular-renal disease, in a June 1992 VA Systemic Conditions Examination, noting a history of heart attack ten years prior (approximately 1982, more than 35 years after separation). In her March 1993 letter, the Veteran's wife (the current appellant) informed VA that he was diabetic. An August 1996 VA Systemic Conditions Examination confirmed the diabetes mellitus diagnosis and noted a 20-year history of the disease. Thus, continuity of symptomatology is not established and direct service connection is not warranted. In this case, the appellant has argued that the Veteran's fatal congestive heart failure was caused by his service connected PTSD. Secondary service connection may be established if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Again, the record establishes diagnoses of congestive heart failure and diabetes mellitus. Likewise, the Veteran is service connected for PTSD. Thus, the remaining concern is whether a medical nexus exists between either of his fatal conditions and his service connected PTSD. In this regard, a June 2010 VA medical opinion found that it was less likely than not that the Veteran's PTSD contributed to his death from congestive heart failure and diabetes as no credible medical links have been found between PTSD and congestive heart failure and/or diabetes. In an April 2013 medical opinion, based on a review of the claims file, a VA physician opined that the Veteran's service connected PTSD did not contribute materially or substantially the Veteran's fatal congestive heart failure or diabetes mellitus. This physician further stated that multiple major predisposing risk factors were present as the primary contributors to the development of these conditions and that PTSD had no more that and indirect impact on the Veteran's heart problems and did not contribute materially or substantially to his death. In providing this opinion, the physician discussed the Veteran's medical history and the relationship between psychiatric disorders and heart disease, referencing relevant medical literature. This opinion is adequate for VA purposes. To the extent that the appellant believes that the Veteran's congestive heart failure was caused by his service connected PTSD, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the appellant is not competent to address etiology in the present case. Based on the above, no medical nexus evidence of record establishes a connection between the Veteran's fatal congestive heart failure and/or diabetes mellitus and his service-connected PTSD. As such, secondary service connection is not warranted. Thus, the preponderance of the evidence weighs against a finding that the Veteran's service connected PTSD is causally linked to his fatal congestive heart failure or diabetes mellitus. As the Board has found that neither the Veteran's congestive heart failure nor diabetes mellitus are service connected, and the Veteran's service connected PTSD and malaria have not been implicated in his death, service connection for cause of 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