Citation Nr: 1326834 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-13 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from October 1950 to October 1953 and received the Combat Infantry Badge and Purple Heart. He died in January 1992. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the St. Paul, Minnesota Pension Management Center. An informal conference with a Decision Review Officer was scheduled for December 2009. However, the appellant's representative canceled and did not request to reschedule. FINDINGS OF FACT 1. The Veteran died in January 1992. The cause of death listed on his death certificate was self inflicted gunshot wound to the neck. Probable paranoid schizophrenia was noted under other significant conditions contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, service connection was not established for any disability. 3. There is no competent evidence showing, and the preponderance of the evidence is against a finding, that the Veteran had any psychiatric disability, to include depression, anxiety, or PTSD, related to service or his cause of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1310, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to a claim for Dependency & 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 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 (2007). The appellant was notified in a February 2009 letter and a February 2010 statement of the case. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the appellant and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent March 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA must assist a claimant in obtaining a medical opinion or examination whenever an opinion is necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); 38 U.S.C.A. § 5103A (West 2002). The Board finds that there is no reasonable possibility that a VA examination would aid in substantiating the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant contends that the Veteran's suicide was caused by a psychiatric disability, to include depression, posttraumatic stress disorder, anxiety, and alcoholism which the appellant contends were related to service in Korea, during combat in the Korean War, that contributed to the Veteran's death. The record shows that, during the Veteran's lifetime, service connection was not established for any disability. Nonetheless, the Board must still consider whether, for purposes of establishing entitlement to service connection for the cause of the Veteran's death, a medical relationship between any cause of the Veteran's death and his service is established. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). A service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1) (2012). The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances that could lead a rational person to self-destruction. It is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. 38 C.F.R. § 3.302 (2012). The service medical records are negative for any complaints, findings, or treatment for any psychiatric disability and there was no evidence that the Veteran showed symptoms of or was treated for a psychoses within one year of discharge from service. The service records show that the Veteran sustained a gunshot wound to the left hip and grenade shrapnel wounds to the right and left hands as a result of enemy action in Korea. The Veteran's service separation from shows that he received the Purple Heart Medal and the Combat Infantry Badge. The Veteran applied for VA disability benefits in December 1955 for a gunshot wound of the left hip. However, in February 1956, the RO advised the Veteran that due to his failure to appear for a scheduled VA examination that his claim had been denied and to contact the office in the future when he was able to appear. A January 1956 letter from a private physician noted that the Veteran sustained injuries to his right lower extremity as a result of post-service employment. In November 1985, the Veteran submitted new claims for VA disability benefits for gunshot wound with muscle and nerve damage, hearing loss, and frozen feet. He agreed to appear for a physical examination. A VA examination was intended to be scheduled for June 1986. However, in a May 1986 letter, the Veteran's wife stated that the Veteran asked her to write a letter that he had changed his mind and did not want to have the examination because he believed that something serious would be found and he would never leave the hospital. In June 1986, the RO issued the Veteran a letter acknowledging the wife's letter and advising the Veteran that if he wanted to reopen his claim in the future to advise the RO when he was willing to report for a VA examination. No additional correspondence was received from the Veteran. Further, there are no medical records following service associated with the claims file, aside from the single private letter regarding an employment-related injury to the Veteran's lower right extremity. The appellant has indicated that due to the length of time since the Veteran's passing in 1992, health care providers have destroyed his medical records and they are no longer available. While "probable paranoid schizophrenia" is listed on the Veteran's death certificate as an other significant condition contributing to death, but not resulting in the underlying cause, that does not provide evidence demonstrating that the Veteran had any diagnosed psychiatric disorder, to include PTSD, related to service. It is a mere conclusion, with a lack of rationale for the determination, fails to provide a definitive diagnosis. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, without a diagnosis of a psychiatric disability, there is no basis to grant service connection. Even if the Board were to find that a psychiatric disability was shown by that diagnosis, there is no competent evidence of record relating that disability to service. Also associated with the claims file are lay statements from the appellant, her children, and the Veteran's brother describing the Veteran's behavior and temperament. The Board finds that while the appellant, her children, and the Veteran's brother are competent to attest to their observations of the veteran, as lay people, they are not competent to diagnose any psychiatric disability or render an opinion as to the cause or etiology of the veteran's death, such as that his cause of death was due to an acquired psychiatric disorder, to include PTSD, related to service, because they do not have the requisite medical expertise. Routen v. Brown, 10 Vet. App. 183 (1997); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, their statements as to the relationship between the Veteran's active service and his cause of death, to include whether the Veteran had a diagnosed psychiatric disability, are not competent opinions. The Board finds that the record lacks any persuasive competent medical or lay evidence that the Veteran had a psychiatric disability related to his active service, or that his cause of death was related to service. The preponderance of the evidence is against the appellant's claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs