Citation Nr: 1324210 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-37 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1943 to March 1946. He died in July 2006, and the appellant is his daughter. This matter is on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. Jurisdiction over the appeal is currently with the RO in Chicago, Illinois. This appeal was remanded by the Board in March 2012 for further development and is now ready for disposition. FINDINGS OF FACT 1. According to his certificate of death, the Veteran died of cardiopulmonary arrest in July 2006 that was due to, or a consequence of, congestive heart failure and an acute myocardial infarction. 2. At the time of the Veteran's death, service connection was established for posttraumatic stress disorder (PTSD), with a 70 percent disability rating. 3. The causes of the Veteran's death were not manifest in service nor diagnosed until many years after separation from service, and are not etiologically related to active service or to his service-connected PTSD. CONCLUSION OF LAW The cause of the Veteran's death is not attributable to a disability incurred in or aggravated by active duty service or to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. In the context of a cause of death claim , 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). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing adequate notice. Here, neither the appellant nor her representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in March 2012 that fully addressed all notice elements. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. While this letter was not provided prior to the initial adjudication of the appellant's claim, this is not prejudicial because, after this notice was sent, the issue was readjudicated, and the appellant was sent a supplemental statement of the case in December 2012. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Therefore, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the appellant submitted news articles regarding a potential relationship between PTSD and physical ailments. Moreover, an opinion by a VA examiner with respect to the issue on appeal was obtained in March 2012, which was accompanied by an addendum in December 2012. 38 C.F.R. § 3.159(c) (4). Cf. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (a VA opinion is not always necessary in a cause of death claim). When VA obtains a VA opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinion obtained in this case is more than adequate, as it is predicated on a full understanding of the Veteran's medical history and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Finally, it is noted that this appeal was remanded by the Board in March 2012 for further development. Specifically, the Board instructed the RO/Appeals Management Center to provide the appellant with a new VCAA-compliant notice and obtain an opinion from a VA examiner as to whether a relationship exists between the Veteran's service-connected PTSD and the causes of his death. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, a VA opinion was obtained in March 2012, and an addendum was obtained in the following December. The RO also sent a new VCAA notice letter to the appellant in March 2012 which, as noted above, is fully satisfactory such that VA's duty to notify has been met. After the required development was completed, this issue was readjudicated and the appellant was sent a supplemental statement of the case in December 2012. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Cause of Death In order to establish service connection for the cause of the Veteran's death, the applicable law requires that the evidence show that a disability which was incurred in or aggravated by service either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2012). In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been 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). On the other hand, a contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint 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. 38 C.F.R. § 3.312(c)(3). 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. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. However, even in such cases, VA must consider 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, 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)(4). In this case, the Veteran died in July 2006. According to his death certificate, the primary cause of death was cardiopulmonary arrest, with contributing causes listed as congestive heart failure and acute myocardial infarction. At the time of his death, he was service connected for PTSD with a 70 percent disability rating. He was also in receipt of a total disability rating based on individual unemployability. The appellant, the Veteran's daughter, submitted a claim in for benefits August 2006, where it has been her assertion that the Veteran's cardiovascular disorders which caused his death were caused or exacerbated by his long-standing PTSD. In support of her argument, she has submitted two newspaper articles which raise the possibility of such a relationship. As this is the appellant's primary argument, the Board addresses this aspect of the claim first. The first article, which is undated but submitted in September 2008, reports on a study of World War II and Korean War veterans which "suggest" that veterans with PTSD are at greater risk of heart attacks as they age. The article also noted a second study which indicated that Iraq veterans with PTSD have reported more health problems, more visits to the doctor and more sick days. The second article, submitted in February 2009, appears to be largely the same as the one submitted previously. The Board also notes that VA has published its own articles which address the potential relationship between PTSD and physical health. See http://www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp (July 24, 2013). However, based on the medical evidence of record, the Board determines that it is less likely than not that the Veteran's service-connected PTSD contributed to the cardiovascular disorders which caused his death. In arriving at this conclusion, the Board places great probative value on an opinion by a VA examiner in March 2012. On that occasion, after a review of the Veteran's claims file, the examiner opined that it was less likely as not that the Veteran's PTSD contributed to his cardiovascular disorders which were ultimately the cause of his death. In providing this opinion, the examiner reflected that the Veteran had a history of hyperlipidemia and cardiovascular disease, as he also underwent a 3-vessel bypass in 1999. The causes of death, according to the examiner, were directly related to the coronary artery disease. Moreover, the examiner noted that there was no strong evidence in the medical literature that PTSD would contribute to coronary artery disease. The Board finds that the opinion is adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, and provided an adequate basis for the opinions rendered. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. While consideration has been given to the articles submitted by the appellant, and it is recognized that VA has conducted its own studies on the subject, the Board nevertheless places greater weight in the opinions of the VA examiner. First, all of the research referenced by the articles suggests only a potential relationship, and does not establish that it is at least as likely as not that a relationship between PTSD and physical disorders exists. The mere suggestion of a relationship is insufficient for service connection purposes. See Obert v. Brown, 5 Vet. App. 30 (1993) (opinions using language such as "could have" are speculative in nature and are insufficient for adjudication purposes). Additionally, the studies referenced by the newspaper articles represent general studies over a wide variety of test subjects. The VA examiner's opinion, on the other hand, was based specifically on the Veteran's history and health. In addition to the VA examiner's opinion, the Board also notes that none of the Veteran's outpatient treatment records ever suggested such a relationship, nor did a treatment provider ever mention that such a relationship may exist. Therefore, the Board finds that the weight of the evidence is against a finding that the causes of the Veteran's death were related to his service-connected PTSD. As such, service connection for the cause of the Veteran's death is not warranted on this basis. Next, service connection for the cause of death may be alternatively warranted where the evidence indicates that the cause of the Veteran's death should have been service connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In those cases, the evidence must show: (1) the existence of a disability at the time of the veteran's death; (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for certain chronic diseases, including cardiovascular renal disease, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this case, the Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a cardiovascular disorder while in service. Significantly, at the time of his separation physical examination in March 1946, no abnormal cardiovascular symptoms were observed. Therefore, a cardiovascular disorder of any sort was not incurred during active duty service. Moreover, the post-service evidence does not reflect symptoms related to a cardiovascular disorder for many years after the Veteran left active duty service, long after the presumptive period for service connection for organic heart disease. In fact, the first indication of a cardiovascular disorder of any sort was not until the time he underwent his 3-vessel bypass graft in April 1999. The Board emphasizes that this first indication of a cardiovascular disorder is approximately 53 years after he left active duty. Such a large gap in treatment also weighs against a finding that any cardiovascular disorder which contributed to his death is related to service. Thus, a basis for a grant of service connection on a direct or presumptive basis has not been presented. Next, service connection for the cause of the Veteran's death may also be granted when the evidence establishes a medical nexus between active duty service and the cause of his death. In this case, the Board finds that the weight of the competent evidence does not attribute the cause of the Veteran's death to active duty. Significantly, none of the competent evidence of record indicates a relationship between the causes of his death and active duty, nor has any treating professional indicated such a relationship. As for all aspects of this appeal, the Board has also considered the statements made by the appellant relating the Veteran's cardiovascular disorders to his service-connected PTSD. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the appellant is not competent to provide testimony regarding the etiology of the disorders that led to the Veteran's death. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of cardiovascular disorders, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Therefore, the unsubstantiated statements made regarding the claimed etiology of the Veteran's cardiovascular disorders are found to lack competency. Finally, while the appellant is competent to establish the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, she has not asserted that the Veteran has experienced cardiovascular disorders since he was on active duty. Although the Board is sympathetic to the appellant's assertions, fully understands her position, and by no means wishes to minimize the service the Veteran provided, the claim for service connection for the cause of the Veteran's death must be denied as the evidence simply does not establish that the causes of death were related to his military service or to his service-connected PTSD. In arriving at the decision to deny the claim, 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs