Citation Nr: 1319489 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 06-14 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1310 based on service connection for the cause of the Veteran's death. 2. Entitlement to DIC under the provisions of 38 U.S.C. § 1318 based on a total disability rating at the time of the Veteran's death. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION Appellant is the surviving spouse of the Veteran, who had active service from March 1943 to November 1945. The Veteran died in October 2003. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, denied service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310. In an April 2006 statement of the case, the RO denied DIC under 38 U.S.C. § 1318. The appellant did not report for a Board hearing that was scheduled to be conducted at the RO in Los Angeles, California, in January 2011. To the Board's knowledge, the appellant has offered no explanation as to why she was unable to appear for the hearing, and she has not since made a request for another opportunity to appear at a hearing. Accordingly, the Board will proceed to a decision on this appeal as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The record includes submissions on behalf of the appellant from both the Veterans of Foreign Wars of the United States (VFW) and the County of Los Angeles Department of Military and Veterans Affairs. Notably, however, the appellant has not completed a VA Form 21-22 appointing either of these veterans service organizations as her authorized representative of record. In February 2013, the Board sent a power of attorney clarification letter to the appellant requesting clarification as to her desires regarding representation in this matter. To date, the appellant has not respond to the letter; therefore, the Board concludes that she remains unrepresented in the instant 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 in October 2003. 2. The Veteran's death certificate lists metastatic bladder cancer as the immediate cause of death and coronary artery disease as a significant condition contributing to death. 3. An April 2005 rating decision granted accrued benefits based on an increased evaluation of 100 percent for posttraumatic stress disorder (PTSD), effective November 14, 2002. 4. The Veteran was not service connected for metastatic bladder cancer or coronary artery disease at the time of his death. 5. The Veteran's cause of death is not etiologically related to a disease, injury, or event in service. 6. The service-connected PTSD was not a principal or contributory cause of the Veteran's death. 7. The Veteran was never a prisoner of war and was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after his discharge from active service, or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310 have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2012). 2. The criteria for DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the claim of entitlement to DIC under 38 U.S.C.A. § 1318, it is the law, and not the facts, that is dispositive of the appeal; therefore, the duties to notify and assist imposed by VCAA are not applicable to that claim. Mason v. Principi, 16 Vet. App. 129, 132 (2002). The discussion below pertains to the service connection for cause of death claim (38 U.S.C.A. § 1310). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). A September 2006 VCAA letter informed the appellant about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; and the information and evidence the appellant was expected to provide. There is no question regarding a rating in a DIC case and, because this decision is denying service connection for the cause of death, any question regarding an effective date to be assigned is moot. In Hupp v. Nicholson, 21 Vet. App. 342 (2007) the U.S. Court of Appeals for Veterans Claims (Court) held that, when adjudicating a claim for DIC (to include service connection for the cause of the veteran's death), VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, 38 U.S.C.A. § 5103(a) notice for a DIC case 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 claim for service connection for the cause of the veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Pursuant to the Board's September 2011 remand instructions, the appellant was provided section 5103(a) DIC notice in a September 2011 letter. VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the appellant's claim and obtaining a VA opinion. The record contains the Veteran's service treatment records, private medical records, VA treatment records, and the appellant's statements. A VA opinion was not obtained in conjunction with the appellant's claim, and the Board finds that an opinion is not "necessary to substantiate the claimant's claim for a benefit." The Federal Circuit held in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) and Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), that 38 U.S.C.A. § 5103A(a) does not require VA to assist a claimant in obtaining a medical opinion in a DIC claim when no reasonable possibility exists that such assistance would aid in substantiating the claim. In this regard, as discussed below, there is no competent and probative evidence of record indicating that the Veteran's terminal metastatic bladder cancer was related to his active service or his service-connected PTSD, or that his service-connected PTSD played any other causal role in his death. There is competent medical evidence attributing the Veteran's death to non-service-connected metastatic bladder cancer and coronary artery disease as a contributing factor. Therefore, the Board finds that a medical opinion is not necessary to substantiate the DIC claims; therefore, satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. Service Connection for the Cause of Death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; 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; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In this case, the Veteran separated from service in November 1945. He died in October 2003. The cause of death was listed as metastatic bladder cancer. Coronary artery disease was also cited as a significant condition contributing to death. At the time of his death, the Veteran was service-connected for PTSD. Service connection for bladder cancer and coronary artery disease had not been established at the time of the Veteran's death. Prior to his death, the Veteran filed an increased rating claim for PTSD in November 2001. Following the Veteran's death, in an April 2005 rating decision, the RO granted accrued benefits based on an increased evaluation of 100 percent for PTSD, effective November 14, 2002. The November 2002 effective date was based on a November 2002 medical opinion from a private psychiatrist that the Veteran was permanently and totally disabled due to PTSD. As an initial matter, the appellant does not contend, nor does the record reflect, that the metastatic bladder cancer or coronary artery disease was incurred in service or was related to service. Rather, the appellant essentially contends that the Veteran's service-connected PTSD and prior heart attacks placed stress on his body, and that these effects caused or contributed to the Veteran's death. See appellant's statement in April 2006 VA Form 9. Service treatment records are negative for complaints, symptoms, findings, diagnosis, or treatment for metastatic bladder cancer or coronary artery disease. As noted above, service connection for bladder cancer has not been established. The Veteran was diagnosed with bladder cancer in approximately 2000, 55 years after service separation. The record does not reflect competent evidence that bladder cancer was caused by or related to service. The Board finds that coronary artery disease is also not related to service. Keiser Permanente medical records do not show that coronary artery disease was incurred in service; rather, these medical records reveal that coronary artery disease began in approximately 1990, 45 years after service separation. See March 2002 Kaiser Permanente treatment records. Service connection for coronary artery disease was adjudicated and denied in April 1991. See April 1991 RO rating decision. In sum, the medical evidence demonstrates no link between the terminal assessment of metastatic bladder cancer or coronary artery disease and the Veteran's active service. 38 C.F.R. § 3.303. Further, the Board finds that the weight of the competent evidence demonstrates that the Veteran's death was not caused by the service-connected PTSD, and that PTSD did not contribute substantially or materially to the cause of death. Weighing generally in favor of the appellant's claim is a December 2006 letter from the Veteran's primary care physician, Dr. R.H. In his letter, the physician stated that the Veteran had a history of PTSD which was being treated at the VA hospital. Dr. R.H. further stated that, in his opinion, the Veteran's PTSD probably contributed to some of the Veteran's health problems. The Board finds the December 2006 statement by Dr. R.H. to be of little probative weight as to the matter at hand. Dr. R.H. is not a psychiatrist or mental health professional; therefore, his opinion of whether PTSD, a psychiatric condition, contributed to the Veteran's death has reduced probative value. Additionally, Dr. R.H. did not provide a rationale for the opinion. Further, Dr. R.H.'s opinion is vague in that he stated that the Veteran's PTSD was probably a contributing factor to his "health problems." Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Specifically, the doctor did not provide a rationale for his opinion and did not discuss which specific health problems were affected by PTSD. For example, at the time of his death, the Veteran had diagnoses for coronary artery disease, bladder cancer, periodontitis, dermatophytosis, osteoarthritis, hypertension, peripheral neuropathy, type II diabetes mellitus, hyperlipidemia, and gastroesophageal reflux disease. Read in its context, Dr. R.H's December 2006 statement is vague and unexplained, and only relates PTSD to general health, but does not relate the state of general health to any specific disorders or the Veteran's death. Dr. R.H.'s statement does not constitute an opinion that PTSD contributed "substantially or materially" to the cause of death. For these reasons, the Board assigns little probative weight to Dr. R.H's medical opinion. Regarding the appellant's statements as to the cause of the Veteran's death, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, in this case, the cause of the Veteran's metastatic bladder cancer and coronary artery disease involves a complex medical etiological question because it deals with internal and complex disease processes that are diagnosed primarily on clinical findings or comprehensive medical testing and only in minor part are diagnosed on symptomatology observable to a lay person. The appellant is competent to relate symptoms that she observed the Veteran experience at any time, but is not competent to opine on whether there is a link between the Veteran's metastatic bladder cancer or coronary artery disease and the service-connected PTSD because such opinion requires specific medical knowledge and training, including psycho-physiological interaction. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Weighing against the appellant's claim is the October 2003 death certificate. The death certificate was certified by a physician and stated that the immediate cause of the Veteran's death was metastatic bladder cancer. The Veteran was not service-connected for bladder cancer and the evidence in the current claim does not relate the bladder cancer or coronary artery disease to service. Coronary artery disease was noted as a significant condition contributing to the death, but not resulting in the underlying cause of the Veteran's death. It was further noted that a cystoprostatectomy was performed in August 2003, two months prior to the Veteran's death. A cystoprostatectomy is a surgical procedure in which the urinary bladder and prostate gland are removed. See Dorland's Illustrated Medical Dictionary 464 (32nd ed. 2012). The Board finds that this procedure related to the treatment for the Veteran's bladder cancer. See Kaiser Permanente treatment records dated February 2002. The October 2003 death certificate did not list PTSD as the cause of death nor as a substantially or materially contributing factor to the Veteran's death. Instead, the doctor rendering the October 2003 death certificate opined that the cause of death was bladder cancer and that a contributory factor in the Veteran's death was coronary artery disease. Also weighing against the appellant claim is a September 2003 VA treatment note, dated one month prior to the Veteran's death, in which a VA doctor noted that the Veteran had terminal cancer of the bladder and was taking many medications to treat the cancer. See also VA treatment note dated September 22, 2003. Upon review of the evidence, the Board finds that VA treatment records do not demonstrate that PTSD contributed to the Veteran's bladder cancer. The Board acknowledges that the Veteran was experiencing symptoms associated with PTSD up until his death in October 2003; however, the competent and probative evidence of record does not demonstrate that the Veteran's PTSD caused or contributed substantially or materially to the cause of death. For the above reasons, the Board finds the opinion in the October 2003 death certificate opinion as to the cause of death and VA treatment records showing the cause of the Veteran's death to be highly probative. In weighing the evidence of record, the Board finds that the preponderance of the evidence weighs against service connection for the cause of the Veteran's death, and the claim must be denied. 38 C.F.R. §§ 3.303, 3.310, 3.312. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. DIC Under 38 U.S.C.A. § 1318 VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran' s release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b). For purposes of 38 U.S.C.A. § 1318, "entitled to receive" means that at the time of death, the Veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because; (1) VA was paying the compensation to the veteran' s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C.A. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran' s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; (6) VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22. Based on the evidence of record, the Board find that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are not met. The Veteran had only one service-connected disability, PTSD, during his lifetime, which was rated 100 percent disabling from November 2002. Thus, he had a 100 percent disability rating for just less than one year immediately before his death in October 2003. The service records do not reflect that the Veteran was a POW. Furthermore, as apparent from the date of death, the Veteran was not rated 100 percent disabled for the five years immediately following service separation. Finally, he was not rated 100 percent disabled for the 10-year period immediately preceding his death. As such, DIC under 38 U.S.C.A. § 1318 are precluded. 38 U.S.C.A. § 1318. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C.A. § 1318, also known as "hypothetical entitlement." Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. As the evidence shows the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) did not die within five years of discharge from active duty, or (iii) was not a former prisoner of war, the criteria for The criteria for DIC pursuant to 38 U.S.C.A. § 1318 have not been met; therefore, the appellant's claim is without legal merit and must be denied. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER DIC under the provisions of 38 U.S.C. § 1310 based on service connection for the cause of the Veteran's death is denied. The appeal for DIC under 38 U.S.C.A. § 1318, being without legal merit, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs