Citation Nr: 1323105 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-07 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from February 1992 to April 2002. The Appellant is the Veteran's spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Appellant withdrew her request for a Board hearing in April 2013. 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 February 2008. 2. The immediate cause of death listed on the death certificate was "dilated cardiomyopathy (etiology unknown)" with "morbid obesity" noted as a significant condition contributing to his death but not resulting in the underlying cause. 3. At the time of the Veteran's death he was service-connected for Guillian-Barré syndrome, degenerative joint disease of lower back, degenerative joint disease of right and left shoulder, osteoarthritic changes of right elbow, arthromy of left elbow with extension deficit, chondromalacia of left knee, right knee arthralgia, status post left ankle injury with limited motion, bilateral hearing loss, and onychomycosis of left great toenail. 4. Dilated cardiomyopathy 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 continuously 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 of 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). The Appellant contends that the Veteran received flu vaccines in service that he should not have gotten due to his service-connected Guillain-Barré syndrome. She stated that the flu vaccines he received were a live virus, which contributed to the Veteran's enlarged heart, ultimately causing his death. The immediate cause of death listed on the Veteran's death certificate is "dilated cardiomyopathy (etiology unknown)." "Morbid obesity" is noted as a significant condition contributing to his death but not resulting in the underlying cause. Service treatment records show the Veteran was treated for Guillain-Barré syndrome in 1994, but do not reflect that the illness had any cardiac manifestations. His treatment records further suggest the illness resolved without further reported recurrence. In a March 2004 statement the Veteran stated that he did not have any residual symptoms of the disorder. VA treatment records show no complaints of or treatment for a recurrence of the disorder, providing some evidence against this claim. The Veteran had active military service from February 1992 to April 2002. He died about 6 years later in February 2008. Guillain-Barré syndrome is further not listed on the Veteran's death certificate and no medical opinion evidence is in the record relating the Veteran's history of Guillain-Barré syndrome to the dilated cardiomyopathy that caused his death other than the opinion of the Appellant. The Board finds the Appellant's opinion is not competent or probative evidence supporting her claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of cardiomyopathy 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) (lay persons not competent to diagnose cancer). She simply can write or speak about what she sees or hears, but cannot provide a medical opinion linking one problem to another. The Veteran's death certificate specifically lists the etiology of the Veteran's dilated cardiomyopathy as "unknown," providing no support for the Appellant's claim. The Appellant did submit a journal article that is a case study of a patient who experienced autonomic dysfunction while presenting with Guillain-Barré syndrome and was found to have reversible cardiomyopathy. The Board finds the article of little probative value as it discusses only one instance of a transient cardiac symptom of a presently occurring episode of Guillain-Barré syndrome, which is factually dissimilar from the Veteran's situation. As the evidence does not support that the Veteran had a recurrence of Guillain-Barré syndrome since the episode documented in 1994, that he had any residual disability from that episode, or that his history of Guillain-Barré sydrome contributed to the dilated cardiomyopathy that caused his death, service-connection for the Veteran's death from his service-connected Guillian-Barré syndrome cannot be granted. At the time of the Veteran's death he was also service-connected for degenerative joint disease of lower back, degenerative joint disease of right and left shoulder, osteoarthritic changes of right elbow, arthromy of left elbow with extension deficit, chondromalacia of left knee, right knee arthralgia, status post left ankle injury with limited motion, bilateral hearing loss, and onychomycosis of left great toenail. The Appellant has not contended and the evidence does not support that any of the Veteran's other service-connected conditions were the principal or contributory cause of the Veteran's death. Finally, the Veteran's treatment records do not reflect that he had dilated cardiomyopathy in service or immediately thereafter. Therefore, service connection has not been established for the cause of the Veteran's death. 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). 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 March 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 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 made reflect that she understood all of the elements to establish service connection for the cause of the Veteran's death. The Veteran specifically argued that the Veteran's service-connected Guillian-Barré caused him to get an enlarged heart from flu shots given in service, contributing to the cardiomyopathy that was his cause of death, and that 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 and VA 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 a service-connected condition. She submitted the Veteran's immunization record and a copy of a medical journal article titled "Guillain-Barré syndrome as a Cause of Reversible Cardiomyopathy." She did not 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 Guillain-Barré syndrome, contributed substantially or materially to the dilated cardiomyopathy that caused the Veteran's death. The evidence of record fails to suggest such a potential relationship, as the Veteran was diagnosed with dilated cardiomyopathy 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 Guillain-Barré syndrome, and the immediate cause of his death. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination/medical opinion is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans/appellants claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the claimed disability is related to military service is the conclusory generalized lay statements of the appellant, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical opinion is not warranted. 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. 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