Citation Nr: 1321787 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-21 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from November 1950 to August 1952. The Veteran died in December 2008 and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's claim for service connection for the cause of the Veteran's death. These issues were remanded for further development in September 2012, and now return again before the Board. 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 December 2008. The cause of death was determined to be pneumonia due to, or as a consequence of dementia. PTSD was listed as a significant condition contributing to death but not resulting in the underlying cause of death. 2. At the time of the Veteran's death, he was service connected for bilateral hearing loss, at a 90 percent evaluation; PTSD, at a 50 percent evaluation; and tinnitus, at a 10 percent evaluation. 3. The preponderance of the evidence is against a finding that the Veteran's cause of death is attributable to service or any incident of service. CONCLUSION OF LAW The 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. § 3.300, 3.303, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted in this case. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting favorable evidence). Stegall Considerations As noted above, the Board previously remanded this matter in September 2012, in order that the appellant might be provided adequate VCAA notice, and as well that an opinion might be provided as to the question of whether any of the Veteran's service-connected disabilities contributed substantially or materially to his demise. An opinion was provided in April 2013, and the appellant was provided with sufficient VCAA notice in a letter dated in January 2013, as well as a Supplemental Statement of the Case dated in August 2013. Thus, there is substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran/Appellant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran/Appellant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the appellant is expected to provide; and (4) request that the appellant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the appellant provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA notice letters dated in January 2009, May 2009, November 2012, January 2013, as well as a Board remand dated September 2012 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The appellant was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letter informed her that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the appellant over the course of this appeal, the appellant clearly has actual knowledge of the evidence the appellant is required to submit in this case; and (2) based on the appellant's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the appellant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the appellant has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of her claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection for accrued benefits purposes and service connection for the cause of death . Thus, the Board finds that the appellant has actual knowledge as to the information and evidence necessary for her to prevail on her claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the appellant are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the appellant as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board obtained medical opinions in both October 2012 and April 2013. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Law Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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) (2012). Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related. See 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death. It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c) (2012). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See 38 C.F.R. § 3.312(c)(1) (2012); Lathan v. Brown, 7 Vet. App. 359 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis As noted above, the Veteran died in December 2008. The cause of death was determined to be pneumonia due to, or as a consequence of dementia. PTSD was listed as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of the Veteran's death, he was service connected for bilateral hearing loss, at a 90 percent evaluation; PTSD, at a 50 percent evaluation; and tinnitus, at a 10 percent evaluation. The Board notes that the appellant has not alleged, nor does any evidence of record, relate the Veteran's cause of death to hearing loss or tinnitus; rather, the appellant alleges that the Veteran's PTSD caused or contributed materially to his death. Taking into account all relevant evidence, the Board finds that service connection is not warranted for the cause of the Veteran's death. In this regard, the Board finds that the preponderance of the medical evidence of record indicates that the Veteran's death is not related to service. Initially, the Board points out, as noted above, that the Veteran's cause of death is listed on his death certificate as being pneumonia due to, or as a consequence of dementia. Neither dementia, nor pneumonia, are conditions which are service connected, nor has any evidence of record been presented relating these conditions directly to service. However, the appellant notes that PTSD, for which the Veteran was service connected during his lifetime, was listed on the Veteran's death certificate as a significant condition contributing to death but not resulting in the underlying cause of death, and therefore service connection for the cause of the Veteran's death should be granted based on his service connected PTSD, either on a direct basis, or that it somehow aggravated the dementia listed as a cause of the Veteran's death. The Board points out that that the law states, as noted above, that for a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death. It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection. Thus, while the Veteran's PTSD is listed on his death certificate as a significant condition contributing to death, because it was also noted on his death certificate to not have resulted in the underlying cause of death, the Board does not find the fact that this was listed in this manner on the Veteran's death certificate, in and of itself, to indicate causal connection such that service connection for the cause of death would be warranted. Reviewing the other evidence of record, the Veteran's terminal hospital records, including the final note dated December [redacted], 2008, do not show treatment for, or symptomatology related to PTSD, nor is a diagnosis of PTSD even noted in the records of his final hospitalization. A VA opinion was rendered in October 2012. At that time, a VA psychologist indicated that, in her professional medical opinion, the Veteran's service connected PTSD did not contribute substantially or materially in bringing about his demise. In support of that opinion, the psychologist indicated that current mainstream research does not support a definitive diagnosis between PTSD and death. A further VA opinion was rendered in April 2013. At that time, a VA psychiatrist offered an opinion indicating that it was less likely than not that the Veteran's dementia was aggravated or causally related to his service connected PTSD. In support of that opinion, the physician indicated that although the Veteran was determined in past years to be service connected for PTSD, he was not treated in the years prior to his death for PTSD symptoms, though he was evaluated psychiatrically periodically, and was diagnosed with an Alzheimer's type dementia in May 2005. The examiner noted that this form of dementia has a high heredity causality and progresses with aging. While severe forms of PTSD can represent physiological states associated with stress disorders, it is not considered by common medical knowledge to contribute to Alzheimer's type dementia. The physician stated that there was no additional evidence in the Veteran's claims file that would provide a medical clinical association between the Veteran's PTSD and his Alzheimer's dementia. Considering this, and all available evidence of record, the Board finds that the preponderance of the medical evidence of record indicates that a service connected disability, including PTSD, did not contribute substantially or materially to the Veteran's death, nor does the evidence show a causal connection. In support of her position, the appellant has submitted a copy of an online medical article indicates that PTSD can cause early death from heart disease, however, as the Veteran's cause of death was not linked to heart disease in any way, the Board finds this evidence of no probative value. The appellant also submitted an article about dementia, but again, the Board does not find this relevant as it does not link the Veteran's cause of death to service or any service connected disabilities, and the Veteran was not service connected for dementia. Also in support of her claim, the appellant submitted multiple copies of an abstract of a study which appeared to show that Veterans with PTSD had a higher incidence of dementia than Veterans who were not diagnosed with PTSD. The Board finds this of minimal probative value. First, the Board notes that there is minimal evidence of record showing a direct medical link between this Veteran's PTSD and his diagnosis of dementia. While the Board recognizes letters dated August 2012 and November 2012 from the Veteran's private physician, which purport to indicate that the Veteran's PTSD aggravated and contributed to his mental health condition and was more likely than not a significant contributing factor in his death, the physician does not offer reasons and bases for this opinion other than this study. In reviewing this study, it does indicate that those diagnosed as having PTSD were at a nearly 2 fold higher risk of developing dementia compared with those without PTSD. However, the study does not specifically indicate that PTSD causes dementia, or that dementia causes PTSD. The study specifically indicated that mechanisms linking these disorders needed to be identified. Nor does the study address whether dementia and PTSD may be the result of another completely separate mechanism relating to susceptibility, such as some predisposition to mental health issues. In sum, while the Board has considered this study, and the medical opinions based on it, as the study does not show any evidence of causation, the Board finds it of limited value as to the question of whether the Veteran's PTSD contributed substantially or materially to death, or has a causal connection. The Board has also considered the testimony of the appellant in her July 2012 hearing before the Board, in which she indicated she believed that the Veteran's PTSD may have contributed to his death. While the Board does find the appellant competent to testify to things she witnessed, such as the Veteran appearing to have nightmares based on his service, the Board finds the question of whether one disability can affect another disability causing the Veteran's death to be a medical one, beyond the scope of the appellant's expertise. As noted above, the Board has found that the preponderance of the competent medical evidence of record indicates that the Veteran's cause of death is not related to service, to include his diagnosis of PTSD. Under these circumstances, the Board concludes that the record does not support a finding that a service-connected disability caused or contributed substantially or materially to cause the Veteran's death. The claim for service connection for the cause of the Veteran's death must therefore be denied. In reaching the decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs