Citation Nr: 1320393 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-50 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1965 to August 1968. The Appellant is the Veteran's spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Appellant was scheduled for a Travel Board hearing in November 2011 but did not appear at the hearing. 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 in August 2008. 2. The immediate cause of death listed on the death certificate is sepsis. Pneumomediastinum and colonic perforation are listed as leading to sepsis, and Crohn's disease is listed as the underlying cause. Also listed as other significant conditions contributing to the Veteran's death but not resulting in the underlying cause are intraperitoneal free air, ankylosing spondylitis, and diabetes. 3. At the time of the Veteran's death he was service-connected for diabetes; peripheral neuropathy associated with diabetes in both upper and lower extremities; bilateral knee sprain with a limitation of extension and flexion; and status post radical retropublic prostatectomy due to prostate cancer, including associated erectile dysfunction and scar. 4. Crohn's disease was not present in service or immediately thereafter. 5. The evidence does not reflect that any of the Veteran's service-connected disabilities affected a vital organ, accelerated the Veteran's death, or substantially contributed to his death. 6. The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he continuous rated totally disabled for a period of not less than five years from his discharge from active duty, nor was he a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.312 (2012). 2. The criteria for DIC under 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 Dependency and Indemnity Compensation (DIC) will be paid to the surviving spouse of a veteran if the veteran dies of a service-connected disability. 38 U.S.C.A. § 1310. In order 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 was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). 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. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death, or that there was a causal relationship between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, will not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). If the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Regulations provide that 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.10; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the immediate cause of death listed on the Veteran's death certificate is sepsis. Pneumomediastinum and colonic perforation are listed as leading to sepsis, and Crohn's disease is listed as the underlying cause. Also listed as other significant conditions contributing to the Veteran's death but not resulting in the underlying cause are intraperitoneal free air, ankylosing spondylitis, and diabetes. At the time of the Veteran's death he was service-connected for type II diabetes mellitus; peripheral neuropathy associated with diabetes in both upper and lower extremities; bilateral knee sprain with a limitation of extension and flexion; and status post radical retropublic prostatectomy due to prostate cancer, including associated erectile dysfunction and scar. The only evidence submitted by the Appellant are her lay statements and the Veteran's death certificate. The Appellant contends that because diabetes is listed as a significant condition on the Veteran's death certificate and the Veteran is service-connected for diabetes, the Veteran's death should be service-connected. The July 2008 rating decision granting the Veteran a 10 percent disability rating for diabetes states that service connection was granted on the basis of presumptive exposure to Agent Orange. The Veteran's January 2008 VA examination states that the Veteran did not take medication for his diabetes but controlled it with attention to his diet. The Veteran's death certificate indicates sepsis is the immediate cause of death and does not list diabetes as an underlying cause but rather as another significant condition (which is not in dispute, diabetes is a significant condition). The death certificate does not explain how (or if) the Veteran's diabetes contributed to his death, nor is any other medical evidence of record that explains any possible nexus or even suggests that it substantially or materially caused the Veteran's death. Thus, a preponderance of evidence is against the Appellant's claim. The rating action indicating a 10 percent rating for this condition and the certificate of death simply does not indicate a connection between death and diabetes. Further, the Appellant does not contend and the evidence does not show that any of the Veteran's other service-connected conditions were a principal or contributory cause of his death. Peripheral neuropathy, bilateral knee sprain, and status post radical retropublic prostatectomy do not appear on the Veteran's death certificate. In addition, the Appellant does not contend that one of the other medical disorders listed on the Veteran's death certificate should have been service-connected during the Veteran's lifetime. A review of the Veteran's service treatment records reflects that there were no findings or diagnosis of Crohn's disease in service. His service treatment records also do not contain findings of sepsis, pneumomediastinum, or colonic perforation, all of which are listed on the Veteran's death certificate as having onset hours before his death. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Finally, with regard to 38 U.S.C.A. § 1318, the Veteran was not a former POW with a disability that was continuously rated totally disabling for a period of one year or more immediately preceding his death. He was not receiving or entitled to receive compensation at the 100 percent rate for the 10-year period immediately preceding his death. He also did not have a disability continuously rated totally disabling for a period of not less than five years from the date of his release from active duty and rated totally disabling at the time of his death. Therefore, none of the criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have been met. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. In a claim for Disability and Indemnity Compensation (DIC) benefits, VA's notice requirements 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. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). A letter dated December 2008 described what evidence the Appellant was responsible for obtaining and what evidence VA would undertake to obtain. The letter also told the Appellant that to substantiate the claim there must be medical evidence showing that a service-connected condition caused or contributed to the Veteran's death, that is, that the Veteran died from a service-connected injury or disease. The letter did not list the Veteran's service-connected conditions. However, to the extent that the notice is not fully compliant with Hupp, under the circumstances of this case, any such error does not require a remand because the error did not affect the essential fairness of the adjudication. Specifically, the record reflects that any defect was cured by actual knowledge on the part of the Appellant as statements she and her representative made reflect that she understood all of the elements to establish service connection for the cause of the Veteran's death. The Veteran has specifically argued, including in a December 2008 statement and December 2009 substantive appeal, that the Veteran was service-connected for diabetes and diabetes is listed as a cause of death on his death certificate, therefore she should be entitled to DIC benefits. As such, the record reflects that the appellant had actual knowledge of the information and evidence needed to substantiate the claim for service connection for the cause of the Veteran's death. VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the appellant in the procurement of service treatment records and pertinent treatment records and providing a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's service treatment records have been obtained. The Appellant further submitted the Veteran's death certificate and was requested to submit any other medical evidence that showed that the Veteran's death was caused by an injury or disease that began in service. She did not submit or identify any additional evidence that could be obtained. With regard to obtaining a medical opinion, the Board notes that in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical opinion or examination for a DIC claim, but it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. Subsequently, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit held that in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim. The Board acknowledges VA has not obtained a medical opinion with respect to the Appellant's claim. However, in this case, a review of the evidence shows that there is no reasonable possibility that a disability of service origin, to include diabetes, contributed substantially or materially to the sepsis that caused the Veteran's death. The evidence of record fails to suggest such a potential relationship, as the Veteran was diagnosed with Crohn's disease many years after service and no medical opinion or statutory presumption provides a potential link to service. Further, the competent medical evidence of record does not relate (or indicate a connection between) the Veteran's service-connected disabilities, including diabetes, to the immediate cause of his death, sepsis, or the underlying cause, Crohn's disease. Once again, simply citing the Veteran significant conditions in the death certificate does not indicate that this condition caused or contributed to the Veteran's death. Therefore, the Board concludes that no reasonable possibility exists that such assistance would aid in substantiating the appellant's claim. Thus, VA's duty to obtain a medical opinion was not triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination or medical opinion is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). Moreover, the Appellant was previously informed in the VCAA letter noted above that she needed to provide medical evidence showing the Veteran's service-connected disability was related to his cause of death. She has not provided any additional evidence, including a report of the autopsy that the Veteran's death certificate notes was performed. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based upon the foregoing, the duties to notify and assist the Appellant have been met, and no further action is necessary to assist the appellant in substantiating this claim. ORDER Entitlement to dependency and indemnity compensation (DIC) benefits for the Veteran's cause of death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs