Citation Nr: 1322034 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-29 405 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) 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 ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is the widow of the Veteran, who served on active duty from September 1954 to August 1956; he died in September 2005. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On the September 2007 Substantive Appeal (Form VA-9), the appellant requested a hearing before a Member of the Board in connection with her claim. The appellant later submitted a statement in October 2007 asserting that she no longer wanted to have a hearing. In March 2011, the Board remanded the case for further evidentiary development. The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in March 2012. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran died in September 2005, at the age of 71. The immediate cause of death was reported as myocardial infarction and arrhythmia due to, or as a consequence of, exploratory laparotomy due to, or as a consequence of gastric cancer. Other significant conditions contributing to the Veteran's death but not resulting in his underlying cause of death included acute renal failure and respiratory failure. 2. At the time of the Veteran's death he was not service connected for any disability. 3. The Veteran's fatal gastric cancer did not originate in service or within one year of his discharge therefrom, and is not otherwise related to his military service. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Additionally, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, 38 U.S.C.A. § 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). In this case, VA satisfied its duty to notify by means of a letter dated in September 2006 from the RO to the appellant, which was issued prior to the RO decision in October 2006. Additional letters were issued in April 2011 and June 2011. Those letters informed the appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the content of those letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. She was provided an opportunity at that time to submit additional evidence. In addition, the March 2012 SSOC provided the appellant with an additional 60 days to submit additional evidence. Thus, the Board finds that the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. It also appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. In connection with the current appeal, an appropriate VA medical opinion has been obtained and service treatment records and post-service records have been obtained. We also note that the VA medical opinion was adequate. The clinician reviewed the history and the established clinical findings and presented reasons for his opinion. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence that has not been obtained or requested. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). II. Factual background. The record indicates that the Veteran served on active duty from September 1954 to August 1956. The record reflects that the Veteran died in September 2005, at the age of 71. A certificate of death, dated in September 2005, indicates that the Veteran's death was attributed to myocardial infarction and arrhythmia due to, or as a consequence of, exploratory laparotomy due to, or as a consequence of gastric cancer. Other significant conditions contributing to the Veteran's death but not resulting in his underlying cause of death included acute renal failure and respiratory failure. No autopsy was performed. At the time of his death, the Veteran was not service-connected for any disability. The service treatment records (STRs) indicate that the Veteran was seen in October 1955 with complaints of left chest pain due to an old projectile from a pistol (1952). A transfer summary reported that the Veteran was admitted to an army hospital on October 31, 1955 from the surgery clinic where he had been referred because of abdominal pains. An old right rectus scar was observed on physical examination and a flat film of the abdomen revealed a 22 caliber bullet in the left upper quadrant. On November 2, 1955, under general anesthesia through an upper abdominal subcostal incision, abdominal exploration was carried out and the bullet removed from the lesser sac high under the left lobe of the liver; post-operatively, the Veteran did fairly poorly and never regained active bowel sounds. He had protractive vomiting, though he was able to retain small amounts of food and fluids. X-ray study of the abdomen showed dilated loops of the small bowels and this bowel obstruction was not relieved by a miller Abbott tube, intravenous fluid therapy, etc. Therefore, on November 17, 1955, a second laparotomy was carried out through the previous incision. The Veteran did well after the second procedure; however, he developed a wound infection postoperatively which is still in the process of healing. He was doing well and should have no further trouble. He was transferred to the convalescent center. The diagnosis was foreign body retained, abdomen, old; complication of surgical treatment, n.e.c., small bowel obstruction. It was determined that this condition existed prior to service and not incurred in the line of duty. A hospital report, dated in January 1956, noted that following the Veteran's admission to the hospital, the Veteran did well and had no complaints. The wound granulated in rather rapidly and by January 3rd, it was healed except for a small crust on the left pole. He was discharged on January 11, 1956 with a temporary profile for 2 months. The STRs do not reflect any complaints, findings or diagnosis of any cancer. On the occasion of his initial VA examination in November 1965, the Veteran indicated that he sustained a gunshot wound to the abdomen in 1949, and he had an operation while stationed in Germany in 1955 for removal of that bullet from his abdomen. A GI series revealed normal bowel function with no disabling residuals of the previous obstruction. There was no sign of an ulcer. Clinical examination of the abdomen showed no masses or rigidity. There was a slight amount of tenderness on pressure in the lower left quadrant but his was not remarkable, and no tenderness was otherwise shown. The pertinent diagnosis was post-operative residuals of small bowel obstruction, mild symptoms. The Veteran's service treatment records show that the Veteran had a gunshot wound to the upper abdomen prior to entering service. While in-service, the Veteran was admitted for treatment due to recurrent abdominal pain. Upon physical examination, a flat film of the abdomen revealed a bullet in the Veteran's left upper quadrant. In November 1955, the Veteran's abdomen was explored and the bullet was removed from the lesser sac under the left lobe of the liver. Post-operatively, he developed a small bowel obstruction. Furthermore, the Veteran was re-explored, and numerous adhesions and stricture of the jejunum were found. Then, the structure was resected and an end-to-end anastomosis was performed. Additionally, it was noted that the Veteran did well except for a wound infection that was still healing. Of record is a discharge summary from Shands Jacksonville, indicating that the Veteran was admitted to the hospital on September 6, 2005 and underwent elective removal of gastric cancer adenocarcinoma; his hospital course was complicated by sepsis, pneumonia and he had severe sepsis on multiple antibiotics and had a course of Xigris. It was noted that, because of his need for long-term mechanical ventilation, the Veteran had a percutaneous tracheostomy placed on September 20, 2005 and since that time had been weaned to ATC trials. This he tolerated well and had gotten out of bed and taken some steps with physical therapy on September 21, and September 22, 2005. However, in the early morning of September 23, 2005, the surgical team was called to bedside for spontaneous ventricular tachycardia and subsequent cardiac arrest. CPR was started, but all attempts failed and the Veteran expired. In April 2011, the Veteran's claims folder was referred to a VA physician for review and opinion regarding the cause of the Veteran's death. The VA physician noted that a discharge summary among the STRs indicate that the Veteran was shot in the upper abdomen in 1952 prior to service. The records also state that the Veteran had two surgeries in service; the first complicated by small bowel obstruction, and the second was to lyse adhesions and resect a Jejunal stricture and was complicated by a wound infection. The physician noted that "following admission, patient did well and had no complaints;" the wound healed rapidly and the Veteran was discharged with a 2 month profile. The Veteran eventually went back to full duty; he did have lateral removal of retained sutures but otherwise did well. The physician further noted that VA records confirm a diagnosis of gastric cancer in July 2005. The physician stated that Veteran's intestinal condition did not contribute substantially or materially to his death; it did not combine to cause death, nor did it aid or lend assistance to the production of death. The physician explained that the medical literature does not support the claim that small bowel obstruction and its treatment, surgical or otherwise, cause gastric cancer. He further added that lysis of adhesions, Jejunal stricture and wound infection also do not cause gastric cancer. Unfortunately, there is no support for the appellant's claim. The physician also noted that the Veteran's in-service operations do not cause myocardial infarction, acute renal failure, or respiratory failure 50 years later. III. Legal Analysis. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the Veteran's service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted for a chronic disease, including malignant tumors, if manifested to a compensable degree within the prescribed presumptive period-one year following separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for the cause of a Veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the Veteran's death. 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 of death, 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 it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It must be shown that there was a causal connection. U.S.C.A. § 1310; 38 C.F.R. § 3.312. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death from the view point of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. In cases where the primary causes of death are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. It would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c) (3), (4). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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. 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. 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. 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 historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary. 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 (West 2002 & Supp. 2012). Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. The Board concludes in particular that there is no persuasive medical evidence relating the Veteran's fatal disease process to service. Significantly, while the STRs reflect that the Veteran was treated for small bowel obstruction, as a result of surgery for the removal of old retained foreign body prior to service, the Veteran's STRs are devoid of complaints or treatment of gastric cancer. Additionally, on the occasion of his initial VA examination in November 1965, a GI series revealed normal bowel function with no disabling residuals of the previous small bowel obstructions. Moreover, the appellant does not argue that symptoms consistent with gastric cancer were continuous from service and the record does not support that they were. The record indicates that the Veteran was first diagnosed with gastric cancer in July 2005, more than 49 years after discharge. Similarly, myocardial infarction and renal failure were first documented on the September 23, 2005 certificate of death. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor to be considered. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). In this regard, no cancer, heart disorder or renal failure was manifested within a year of the Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. Given the absence of a diagnosis and treatment for the cause of his death for many years after service, the evidence does not support a finding that any of these disorders are related to active duty based on continuity of symptomatology. Moreover, the Board finds that the record does not contain competent evidence to establish a nexus, or direct link, between the underlying cause of death, gastric cancer, and the Veteran's period of active service. In fact, following a review of the Veteran's claims folder, in April 2011, a VA examiner stated that the Veteran's intestinal condition did not contribute substantially or materially to his death; it did not combine to cause death, nor did it aid or lend assistance to the production of death. The examiner explained that the medical literature does not support the claim that small bowel obstruction and its treatment, surgical or otherwise, cause gastric cancer. He further added that lysis of adhesions, Jejunal stricture and wound infection also do not cause gastric cancer. The examiner further noted that the Veteran's inservice operations do not cause myocardial infarction, acute renal failure, or respiratory failure 50 years later. The Board appreciates the appellant's sincere contentions regarding the cause of her husband's death. While we acknowledge the appellant's opinion, as a layperson, she is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Here, the appellant has failed to submit competent evidence to provide a nexus between any in-service injury or disease and the conditions that caused and contributed to cause the Veteran's death. At this time, there is no competent evidence of the fatal disease processes during service, there is no competent evidence of the fatal disease processes within one year of separation and there is no competent evidence relating the processes to service. In any event, the Board must find that the appellant's statements and evidence are outweighed by the service and post-service medical record, which the Board finds clearly provides evidence against this claim, indicating that death was caused by a disability that began many years after service with no connection to service. Given the above, there is no competent evidence showing that the fatal disease processes were related to any incidence of service. Therefore, the preponderance of the evidence is against service connection for cause of death. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs