Citation Nr: 1322253 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-34 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for cause of the Veteran's death for the purpose of establishing entitlement to VA burial benefits for a service-connected cause of death. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1962 and from May 1963 to September 1977. The Veteran died in March 2008. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal a rating decision in November 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in November 2008 for additional development. That development has been accomplished and the issue is now ready for adjudication. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). FINDINGS OF FACT 1. The Veteran died on March [redacted], 2008; the death certificate lists the immediate cause of death as multi-lobular pneumonia due to or as a consequence of methicillin resistant staphylococcus aureus (MRSA), due to or as a consequence of chronic obstructive pulmonary disease (COPD), due to or as a consequence of Raynaud's Syndrome. 2. The Veteran's service connected disabilities at the time of his death were sensory neuropathy of the feet, secondary to frostbite, residuals of frostbite of the feet, sensory neuropathy of the hands with Raynaud's phenomenon and residual frostbite of the hands. He had a combined rating of 100 percent. 3. Neither sensory neuropathy of the feet, secondary to frostbite, residuals of frostbite of the feet, sensory neuropathy of the hands with Raynaud's phenomenon, nor residual frostbite of the hands caused or aggravated pancreatic cancer or caused or contribute materially to the cause of the Veteran's death. 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, 1131, 1116, 1310 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.312 (2012). VA's Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. While the appellant did not receive a letter which, in and of itself satisfied all of the duty to notify requirements, she was provided with the necessary information and provided time in which to respond. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). The appellant was notified of the Veteran's service-connected disabilities at the time of his death in the November 2008 rating decision. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The claim was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes that the appellant has not been provided specific notice regarding VA's assignment of disability ratings and effective dates in the event that any claim is granted. However, the absence of such notice is not shown to prejudice the appellant. Because the Board herein denies the claim for cause of death, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. This matter was before the Board in May 2012, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C. The purpose of this remand was to request and obtain any outstanding private and/or VA treatment records, and to obtain a VA medical opinion. All of the actions previously sought by the Board through its prior development request appear to have been completed as directed, and it is of note that the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a supplemental statement of the case (SSOC) was issued in January 2013, which continued the previous denial. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and thus allows the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA medical opinion has been obtained and the opinions are adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for the Cause of the Veteran's Death When a Veteran dies from a service-connected disability, VA will pay dependency and indemnity compensation to a surviving spouse. To establish service connection for the cause of a death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed to the cause of death. 38 U.S.C.A. § 1310. The Appellant has been granted dependency and indemnity compensation under 38 U.S.C.A. § 1318. See November 2008 rating decision. Thus, the only issue before the Board is whether the Appellant may receive additional benefits afforded when a service connected disorder is found to be the cause of death under 38 U.S.C.A. § 1310. A service-connected disability will be considered as the primary cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the primary cause. 38 C.F.R. § 3.312. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Generally, to establish service connection, the evidence must show: (1) a disability; (2) an in-service incurrence or aggravation of the disability; and (3) a causal relationship between the disability and service, the so-called 'nexus' requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In determining whether a service connected disability contributed to death, it must be shown that they contributed substantially or materially to cause death, that a his service-connected disabilities combined to cause death, and that it aided or lent assistance to the production of death. A causal connection must be shown. 38 C.F.R. § 3.312(c)(1). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Factual Background The Veteran's service treatment records demonstrate treatment for frostbite. Service treatment records are silent as to any treatment for or complaints of pneumonia, COPD or MRSA. VA treatment records reveal that, in February 2008, the Veteran contracted MRSA following a cervical laminectomy. See February 1, 2008 VA treatment note. The Veteran was treated with medication for MRSA, diagnoses of MRSA, COPD, stable clinically, tobacco abuse and hypertension were provided. See February 6, 2008. A February 27 2008 VA treatment note reported that the Veteran would be going home on with hospice assistance on February 28, 2008 (mistakenly recorded 1/28/2008). The Veteran's death certificate reveals that, on March [redacted], 2008, the Veteran passed away in his home. The immediate cause of death was reported as multi-lobular pneumonia, this was noted as being due to MRSA which was noted as being due to or as a consequence of COPD which was noted as being due to or as a consequence of Raynaud's syndrome. In a December 2008 note from VA physician S.N. stated that Raynaud's syndrome was likely associated to the Veteran's death in that the Veteran's chronic debility/immobility due to his Raynaud's phenomenon and immunocompromise made him more vulnerable to infections such as MRSA related osteomylitis and pneumonia. In a June 2012 VA medical opinion, a VA examiner noted that according to the Veteran's death certificate, his cause of death was pneumonia due to MRSA due to chronic obstructive pulmonary disease and Raynaud's syndrome. The examiner noted that the Veteran was service connected for residuals of frostbite of the feet with polyneuropathy, residuals of frostbite of the hands, with polyneuraopathy and Raynaud's phenomenon and Raynaud's phenomenon of the feet. He stated that in addition to the Veteran's service connected disabilities, the Veteran had COPD, which was a preventable disease and that cigarette smoking was considered the single most important risk factor in the development of COPD. He noted that several factors were documented to predispose adults to develop pneumonia and that the Veteran known as risk factors for developing pneumonia: he smoked tobacco, was over 65 years of age and had COPD. The examiner stated that the Veteran developed MRSA while hospitalized for a cervical laminectomy at a private hospital in February 2008 and that he developed pneumonia from that MRSA. The examiner opined that it was less likely than not that the Veteran's service connected disabilities, including Raynaud's phenomenon caused or contributed to the cause of the Veteran's death. The examiner stated that Raynaud's phenomenon did not cause COPD, that tobacco smoking did, and that COPD was the major causal contributor to the Veteran's death from MRSA pneumonia. Analysis In order to establish service connection for cause of death the lay and/or medical evidence must at least be in equipoise as to whether the Veteran's service-connected disosrders contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. Initially, the evidence does not suggest, and the appellant does not contend, that any of the non-service connected conditions cited in the Veteran's death certificate, Pneumonia, MRSA or COPD, were due to service and the evidence of record is completely silent as to any connection between those disorders and service. Instead, the appellant contends, the issue turns on whether, the Veteran's service-connected disorders resulted in his cause of death. The evidence of record includes the appellant's own assertions that her husband's death was caused by his service-connected disorders. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) diagnosing a disorder or attributing a disorder to another medical condition falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). No factual foundation has been established to show that the appellant is qualified through specialized education, training, or experience to identify the presence or diagnosis of the current cervical spine disability. Therefore, the appellant's lay opinion is not competent evidence and the opinion is not to be considered as favorable evidence. As the appellant's lay evidence is not competent evidence, the Board need not reach the question of credibility. As the appellant's s lay evidence is not competent evidence on the question of whether recurrent pancreatitis caused or contributed to the cause of the Veteran's death, the Board looks to the medical evidence. The medical findings of the June 2012 VA medical examiner are more probative than opinion of Dr. S.N. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the VA examiner is shown to have examined the totality of the evidence and provided a more thorough, detailed opinion as to the cause of the Veteran's death. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion included the physician's access to the claims file and the thoroughness and detail of the opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The VA examiner has noted that the Veteran's COPD, and not his service-connected disorders contributed substantially or materially to cause death, combined to cause death or aided or lent assistance to the production of death and that his Raynaud's phenomenon did not cause COPD. He stated that COPD was the main cause of the Veteran's pneumonia. The examiner's opinion is comprehensive and presents a stronger case than the opinion of Dr. S.N. who provides a tenuous finding that the Veteran's service-connected disabilities rendered him less mobile, which encouraged infections, which led to the Veteran's death. This is especially questionable since the Veteran is shown by the record to have incurred MRSA while being treated at a private facility for his non-service connected cervical spine disorder. As the medical evidence which demonstrates that the Veteran's service connected disorders were not the primary or contributory cause of the Veteran's death outweighs the medical evidence in favor of the appellant's claim, service connection for cause of death is unwarranted. The preponderance of the evidence is against the claim for cause of death; there is no doubt to be resolved; and service connection for cause of death is not warranted. ORDER Entitlement to service connection for cause of the Veterans' death for the purpose of establishing entitlement to VA burial benefits for a service-connected cause of death is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs