Citation Nr: 1326998 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-14 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and a translator ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had recognized service from July 1942 to April 1946. The Veteran died in December 1990. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant appeared at a Travel Board hearing before the undersigned Veterans Law Judge in April 2011. A transcript of that hearing has been associated with the claims file. The above-captioned issue on appeal was remanded in an August 2011 Board decision. The Board requested that the RO attempt to obtain any medical treatment records identified by the appellant and to obtain an opinion as to whether it was at least as likely as not that the Veteran's fatal peptic ulcer was related to service. In December 2012, a VA opinion was obtained after efforts to obtain additional treatment records proved unsuccessful. Accordingly, the Board finds that there has been substantial compliance with the August 2011 Remand, such that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 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. According to the certificate of death, the Veteran died in December 1990 from complications related to a peptic ulcer. 2. At the time of the Veteran's death, he was not service connected for any disability. 3. The most probative evidence of record fails to establish that it is at least as likely as not that a service-connected disability caused or contributed materially or substantially to the Veteran's death, or that the cause of his death, peptic ulcer, was otherwise related to his recognized military service or any incident therein. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA duty to notify was satisfied by a letter sent to the appellant in December 2008 that fully addressed all three notice elements and was sent prior to the initial RO decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although the notice letter issued in December 2008 did not apprise the appellant of the criteria for consideration in the assignment of an effective date, in the event of award of the benefit sought, the Board finds that she is not prejudiced in this regard. As the appeal is denied herein, the benefit sought is not granted, and there is no effective date to be assigned. In the context of a claim for dependency and indemnity compensation (DIC) benefits, section 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 a section 5103(a)-compliant notice. Hupp-compliant notice was provided in December 2008. Any defect as to the timing of this notice was cured because the RO readjudicated the claim in a February 2013 supplemental statement of the case. See Prickett, supra. VA has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and providing an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records and a December 2012 VA opinion regarding the cause of death. The report of the VA physician who provided the opinion included a review of the Veteran's medical history, including his service treatment records, and provided the reasons and basis for his opinions. Therefore, the Board concludes that the VA opinion is adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As mentioned above, the appellant appeared at a Travel Board hearing before the undersigned Veterans Law Judge in April 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veterans Law Judge asked questions to ascertain the existence of an outstanding potentially available evidence, the extent of any in-service event or injury and whether the disability which resulted in the Veteran's death was related to service. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the appellant. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the issue on appeal and the elements necessary to substantiate her claim. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 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). The RO has obtained the service treatment records. The record also contains the Veteran's death certificate. The appellant appeared for a hearing before the Board. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (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. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). 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). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration 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, however, 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). More generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as peptic ulcer disease, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. During his lifetime, the Veteran was not service connected for any disability. The Veteran died in December 1990. The death certificate, signed by a physician, reflected that the immediate cause of death was "peptic ulcer, complicated." There were no antecedent causes of death, underlying causes of death, or other significant conditions contributing to death. In affidavits dated in March 2009, men who served alongside the Veteran during World War II indicated that he suffered from a peptic ulcer during service. Specifically, they indicated that the Veteran was wounded in the right eye during a battle, which led to his early discharge, and also that he had suffered from a peptic ulcer for which he received hospital treatment until November 1949. However, a peptic ulcer or other gastrointestinal disability was not reflected in the records from the Veteran's period of military service. To the contrary, in his February 1946 Affidavit for Philippine Army Personnel, the Veteran explicitly indicated that he did not incur any wound or illness from 1941 until 1946. The appellant contends that the Veteran incurred a peptic ulcer during his military service in April 1945 and received hospital treatment until 1949 for the disability. However, she conceded that medical records related to this treatment no longer existed as the hospital closed in 1950 and records were destroyed after 10 years. A VA medical opinion was obtained in December 2012, at which time a VA endocrinologist opined that a peptic ulcer was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The endocrinologist explained that although peptic ulcer disease, its pathogenesis and/or progression, may be regarded as a chronic condition, this was not reflected in any consultation during the Veteran's years of service, nor during the year following his service. Hence, it was less likely than not that the fatal peptic ulcer disease which resulted in the Veteran's demise in 1990 was incurred during his military service from 1942 to 1946. The Board has considered the lay statements alleging that the peptic ulcer disease which resulted in the Veteran's death was incurred in or related to service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the appellant and the Veteran are not shown to be competent to render opinions regarding the existence or diagnosis of peptic ulcer disease because it is a question that requires medical expertise and is not capable of lay observation or analysis. Cf. Jandreau v Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Neither the appellant nor the Veteran have been shown to have had medical training necessary to render such an opinion. Competent evidence concerning the probable onset of the Veteran's peptic ulcer disease was provided by the endocrinologist who conducted the December 2012 examination . Because the endocrinologist is competent to assess etiology and onset of peptic ulcer disease, the Board finds that the endocrinologist's conclusions regarding the Veteran's peptic ulcer to be more probative than the aforementioned lay statements. The Board also finds the VA endocrinologist's opinion to be more probative than the lay statements because it is supported by the February 1946 Affidavit for Philippine Army Personnel, in which the Veteran explicitly indicated that he did not incur any wound or illness from 1941 until 1946. In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 39 (1995) (flat feet). Laypersons have been found not to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Board finds no reason to question the appellant's credibility. Nonetheless, the diagnosis of peptic ulcer disease constitutes a complex medical matter upon which a lay person cannot opine. See, e.g., Id.; Routen, supra. Thus, the Board cannot credit these lay assertions. In sum, there is no competent evidence associating the peptic ulcer disease which resulted in the Veteran's death with service or a service-connected disability. Although the Board recognizes the Veteran's service and is sympathetic with the appellant's loss of her husband, in light of the evidence discussed above, there is no basis upon which to award service connection for the cause of the Veteran's death. The Board is not permitted to engage in speculation as to medical causation issues but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, because there is no evidence in support of the claim, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death, and the claim cannot be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany, supra. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs