Citation Nr: 1322689 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 11-16 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1946 to June 1947. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the appellant and her daughter testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the electronic claims file. In March 2013, the Board remanded the case for additional development. It now returns for further appellate review. Subsequent to the most recent supplemental statement of the case, the appellant submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. 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 July 1979. The death certificate lists an immediate cause of pulmonary embolism with infarct of lungs. 2. During his lifetime, the Veteran had not established service connection for any disability. 3. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, in a February 2010 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant that the Veteran was not service-connected for any conditions at the time of his death and provided an explanation of the evidence and information required to substantiate a Dependency and Indemnity Compensation (DIC) claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include private treatment records and lay statements. The Veteran's service treatment records, service personnel records, and Social Security Administration medical records are unavailable. He does not appear to have been treated at VA facilities. When there is evidence that a veteran's service treatment and personnel records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Pursuant to the March 2013 remand directives, in April 2013 a letter was sent to the appellant asking for authorization to obtain treatment records from three identified private providers. In response, the appellant submitted private treatment records from one of the providers, and statements from the other two that they no longer had records of the Veteran's treatment. Thus, there are no identified outstanding treatment records. Also pursuant to the remand directives, in May 2013 a medical opinion was obtained from a VA physician addressing whether the Veteran's chronic lung problems caused his death. The Board finds that such opinion is adequate to decide the issue as it is predicated on a thorough review of the claims file. The opinion considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that there has been substantial compliance with the March 2013 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The appellant has been afforded a hearing before a VLJ in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the appellant's representative and the VLJ asked specific questions directed at identifying the onset and occurrence of the Veteran's symptoms. The VLJ also clarified the theories raised by the appellant, asked specific questions to identify any outstanding treatment records, and explained the evidence necessary to establish service connection for the cause of death. The hearing discussion revealed that private treatment records were outstanding, and the VLJ requested the identified records on remand. Additionally, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the VLJ hearing. The hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that no further action pursuant to Bryant is necessary. The appellant was an active participant in the claims process by providing evidence, argument, and testimony. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the appellant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The appellant contends that service connection is warranted for the cause of the Veteran's death. Specifically, she alleges the Veteran's lung problems and mental disability existed since shortly after service and caused or contributed to his death. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). A service-connected disability is considered the "principal" cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A "contributory" cause of death is inherently one not related to the principal cause. 38 C.F.R § 3.312(c). A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran died in July 1979, 32 years after his military service. The death certificate lists the immediate cause of death as pulmonary embolism with infarct of lungs. No contributing causes were listed. The autopsy report, dated July 1979, contains a brief medical history of the Veteran. It shows that he had a history of pulmonary problems, including a ruptured pulmonary bleb in April 1977 that caused a left pneumothorax which was treated by thoracotomy, as well as a diagnosis of combination obstructive and restrictive pulmonary disease of unknown etiology. It was noted that the Veteran died suddenly and unexpectedly at home, with his previous state of health being good except for a chronic restrictive and obstructive diffuse pulmonary lesion from which he was only modestly symptomatic. The autopsy report also stated that other past history included a diagnosis of paranoid schizophrenia under drug treatment and benign prostatic hypertrophy which was treated by transurethral resection in 1978. The report noted the Veteran's family reported no acute symptoms preceding the cardiac arrest. The final diagnoses were cardiac arrest of unknown etiology as a clinical diagnosis; and primary anatomical diagnoses of pulmonary thrombo-embolism with pulmonary hemorrhage, edema and diffuse atelectasis; terminal aspiration; chronic bronchitis and emphysema; and chronic pleuritis. Accessory anatomical diagnoses were stenosis of left renal artery, cystadenocarcinoma of left kidney, and extensive pleural adhesions. The medical evidence attributes the Veteran's death to a principal cause of pulmonary embolism with infarct of lungs. At the time of the Veteran's death he was not service connected for any disabilities. His service treatment records and personnel records are unavailable. The evidence shows that during his lifetime the Veteran suffered from mental disability and chronic lung problems (diagnosed on autopsy as chronic bronchitis, emphysema, and chronic pleuritis). The appellant testified that she knew the Veteran in junior high school, but met him again and began a relationship with him in 1949, just a little over a year after his discharge from service. She testified that he had breathing problems in 1949 and continued to have those problems until his death. His breathing problems had exacerbated episodes three to four times per year. She described him as swinging, shaking, and unable to talk during these episodes. As the Veteran aged, the episodes worsened. The Veteran's daughter testified that she was born in 1962 and as long as she could remember her father had trouble breathing and at times clutched his chest or used oxygen. The appellant testified that the Veteran was easily angered and frustrated as long as she knew him. Private treatment records from Fairhill Mental Hospital show that the Veteran was admitted for dysthymic disorder in December 1970, February 1975, and June 1979. In her claim for DIC benefits dated August 2009, the appellant stated that the Veteran suffered from shell shock and posttraumatic stress disorder (PTSD) as a result of his service. She described symptoms including nervous breakdowns, suicide attempts, self-harm, and significant medication and heavy sedation. She stated that he was in and out of psychiatric hospitals until his death. A diagnosis of paranoid schizophrenia was noted by history on the autopsy report. The appellant and her daughter are competent to testify to observed symptoms, and the Board finds their testimony credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board does not doubt the sincerity of the appellant and her daughter in reporting their beliefs that the Veteran's death was somehow related to his chronic lung problems and/or mental disability. However, the matters at issue are medically complex. That is, medical expertise is required to determine whether the cause of the Veteran's death (pulmonary embolism with infarct of lungs) is in any way related to service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ((noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). Neither the appellant nor her daughter have shown that they have specialized training sufficient to determine such. Therefore, they are not competent to provide medical opinions regarding the etiology of the underlying cause of the Veteran's death. A VA opinion was sought and the May 2013 VA medical opinion reflects a review of the claims file. The VA examiner concluded that it is less likely than not that the Veteran's chronic lung problems, diagnosed on autopsy as chronic bronchitis, emphysema, and chronic pleuritis, caused or contributed substantially or materially to cause or hasten his death from pulmonary emboli. The VA physician provided a rationale for his opinion, explaining that chronic bronchitis, emphysema, and chronic pleuritis do not typically cause or contribute to the development of pulmonary emboli. The autopsy showed the presence of many acute and chronic pulmonary emboli in the lungs, "and this pulmonary embolism burden would be very likely to cause death with or without the presence of any underlying lung disease." The Board finds this opinion is highly probative, as it provides a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Thus, while the appellant contends that the Veteran's chronic lung problems are related to his death, the most probative evidence is against a finding that the Veteran's chronic bronchitis, emphysema, and chronic pleuritis caused or contributed substantially or materially to cause or hasten his death from pulmonary emboli. Therefore, the question of whether his chronic lung problems were related to service is moot. With respect to the appellant's contentions that the Veteran's suffered from "shell shock" and PTSD as a result of his service, the Board notes that the Veteran's DD Form 214 indicates that he did not participate in any battles or campaigns during World War II. The appellant married the Veteran two years after service, and has not testified as to having direct knowledge of the Veteran's health status during service or in the immediate year following discharge from service. The medical evidence of record shows the Veteran with a history of paranoid schizophrenia, with no mention of PTSD or shell shock. None of the medical evidence of record indicates that his paranoid schizophrenia was related to service. Moreover, none of the medical evidence even suggests that his death from a pulmonary embolism was in any way related to a psychiatric disorder. As there is no competent and probative evidence linking any disability of service origin and the pulmonary embolism with infarct of lungs that caused his death, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs