Citation Nr: 1327825 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 11-15 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office & Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to June 1945. He died in September 2009, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) & Insurance Center in Philadelphia, Pennsylvania. The October 2010 decision denied service connection for the cause of the Veteran's death. The appellant appealed. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. The Veteran died in September 2009. The cause of death was determined to be caused by cardiac arrest due to cardiomyopathy, and congestive heart failure, dementia, old tuberculosis (TB), and lobectomy were determined to be other significant conditions contributing to death. 2. At the time of the Veteran's death, he was service-connected for residuals of a shell fragment wounds (SFW) to the left mid-thigh, rated as 60 percent; amputation of the distal 1/2 middle phalanx right index finger, rated as 10 percent; scar related to the amputation of the right index finger, rated 10 percent; scars of the right thigh donor site for skin graft to right thumb, rated noncompensable; and residuals of shrapnel wounds manifested by a scar of the right thumb, rated noncompensable. 3. The preponderance of the evidence is against a finding that the Veteran's cause of death is attributable to service, any incident of service, or a service-connected disability, nor was any heart disability or active TB shown within the Veteran's first post-service year. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1116, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the appellant and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the appellant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the appellant is expected to provide; and (4) request that the appellant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the appellant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2009, October 2009, September 2010, and March 2012 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The appellant was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letters informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the appellant how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310 DIC, the Court held that 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 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 Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Id. The June 2009 and March 2012 letter informed the appellant as to the conditions for which the Veteran was service-connected at the time of his death, what information and evidence was needed to support a claim for DIC. As such, the Board concludes that the letter provided the information to the appellant prescribed in Hupp. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the appellant over the course of this appeal, the appellant clearly has actual knowledge of the evidence she is required to submit in this case; and (2) based on the appellant's contentions as well as the communications provided by VA, it is reasonable to expect that the appellant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the appellant was continuously represented by an experienced national service organization. She has submitted argument in support of her claim. These arguments have generally referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the appellant has actual knowledge as to the information and evidence necessary for her to prevail on her claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the appellant are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time otherwise referenced outstanding records that she wanted VA to obtain or that she felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the claims file was sent to a VA examiner in July 2011 for an opinion as to the Veteran's cause of death. The examiner considered the Veteran's service treatment records, post-service treatment records, and the appellant's contentions. Based on the foregoing, the examiner concluded that the Veteran's death was not due an event, disease, or injury incurred during active service or due to a service-connected disability. Therefore, as the opinions were based on review of the claims file, including the appellant's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the appellant's claim for service connection for the cause of the Veteran's death. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the appellant's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain diseases, to include organic heart conditions and active TB, may be presumed to have been incurred in service when manifest to a compensable degree within one year (heart) or three years (TB) of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board notes the claims file does not include a diagnosis of any heart disorder or active TB in service or within the noted presumptive time periods. As such, service connection on a presumptive basis is not warranted for any heart disability or TB residuals. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a lay person is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis The appellant is claiming entitlement to service connection for the cause of the Veteran's death. She maintains that his service-connected SFW of the left leg were a precursor to his heart problems that ultimately led to his death. She further alleges that he had difficulty walking for many years and he was eventually unable to walk. She stated that his inability to walk along with the lack of blood flow to the legs ultimately caused his death from cardiac arrest due to cardiomyopathy. In the instant case, the Veteran died in September 2009, or approximately 64 years after his separation from service, at the age of 85. The Veteran's last hospitalization at the VA Medical Center VAMC listed the Veteran's cause of death as cardiac arrest due to cardiomyopathy, with congestive heart failure, dementia, old TB, and lobectomy as significant factors contributing to his death. His death certificate, however, did not include a cause of death. At the time of his death, the Veteran was service connected for SFW to the left mid-thigh, rated as 60 percent; amputation of the distal 1/2 middle phalanx right index finger, rated as 10 percent; scar related to the amputation of the right index finger, rated 10 percent; scars of the right thigh donor site for skin graft to right thumb, rated noncompensable; and residuals of shrapnel wounds manifested by a scar of the right thumb, rated noncompensable. The Veteran's available STRs are silent for any treatment for or complaint of a heart-related disability-including cardiomyopathy or congestive heart failure. Further, these records show no treatment for dementia, old TB, or other lung disability. In fact, his in-service chest x-rays were within normal limits. The Veteran was not diagnosed as having any heart or lung disability within his first post service year. Following service, the Veteran was afforded VA examinations in October 1945, October 1948, and September 1949. He was not found to have any chronic heart or lung disability following those examinations. The Veteran was also treated for TB and underwent a lobectomy in the mid-1970s. This was nearly 30 years following his discharge from the military. He also had a history of lung related disorders such as emphysema and chronic obstructive pulmonary disease (COPD). The Veteran was noted to have a history of bradycardia, cardiac dysrhythmias, and essential hypertension in VA outpatient treatment records dated in the early-2000s. This was over 55 years following his discharge from the military. He subsequently was diagnosed as having cardiomyopathy, congestive heart failure, and dementia. In the VA treatment record at the time of the Veteran's last hospitalization, the treating professionals indicated that the Veteran died of cardiac arrest due to cardiomyopathy with congestive heart failure, dementia, and old TB with lobectomy as other significant conditions leading to death. Immediately preceding his death, he was in hospice with severe dementia and cardiomyopathy. These records do not reflect any findings linking the Veteran's cardiomyopathy to his service-connected disabilities or military service. In July 2011, the Veteran's claims file was sent to a VA examiner for an opinion as to the cause of his death. Following review of the entire claims file, the examiner opined that the Veteran's death was less likely than not caused by or related to his service-connected disabilities. In reaching this conclusion, the examiner indicated that SFW of the left thigh with a comminuted fracture, post-traumatic arthritis, osteomyelitis, and retained foreign body did not cause blood flow impairment and did not contribute to the Veteran's death nor did they cause his dilated cardiomyopathy. A review of his VA medical records reveals a cardiology consult note in September 2009 that shows the Veteran had bronchopneumonia associated with respiratory failure and COPD, moderate aortic valve insufficiency, anemia and hypernatremia due to dehydration and hypotension. He also had chronic ischemic heart disease. The examiner indicated that according to the medical literature dilated cardiomyopathy is caused most commonly by chronic alcohol abuse, unrecognized myocarditis, chronic tachycardia, amyloidosis, sarcoidosis, hemochromatosis. The examiner did not find that the Veteran had any of these conditions, and his cardiomyopathy was not caused by his service-connected leg injury. Additionally, the examiner indicated that the Veteran was not service-connected for any cardiovascular conditions or other conditions that would have caused his cardiomyopathy. There is no clinical opinion to the contrary. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the cause of the Veteran's death was due to a service-connected disability or is otherwise related to his military service. In other words, the Board finds that the Veteran did not have any service-connected disabilities that contributed substantially and materially to his death, combined to cause his death, or aided and lent assistance to the production of his death. First, as there was no evidence of TB or a chronic coronary condition at the time of separation from service or for the one-year presumptive period thereafter, a showing of continuity of symptoms after discharge is required to support the claim for service connection for the cause of the Veteran's death. See 38 C.F.R. § 3.303(b) (2012). In other words, there is no competent evidence of record indicating that the Veteran received treatment for a heart disability or TB within one year of separation from service to warrant presumptive service connection. The only competent clinical opinion of record does not find any link between the Veteran's service-connected SFW to the left mid-thigh, amputation of part of the right index finger, scar related to the amputation of the right index finger, scars of the right thigh donor site for skin graft to right thumb, or residuals of shrapnel wounds manifested by a scar of the right thumb and his subsequent cardiomyopathy that caused cardiac arrest (with significant factors including congestive heart failure, dementia, old TB, and lobectomy), and ultimately his death. The July 2011 examiner's opinion was made following review of the relevant records and based upon her expertise as a physician. She provided a detailed rationale for her opinions. As such, the Board finds this January 2011 examiner's opinion both credible and highly probative as to the element of nexus. Additionally, neither the appellant nor her representative has presented, identified, or alluded to the existence of any medical evidence or opinion that directly contradicts the VA examiner's conclusions. The Board is sympathetic to the appellant in that it is clear she sincerely believes her spouse's heart problems were due to his inability to walk or lack of blood flow from the SFW of the left thigh. However, the most probative medical evidence of record does not support these contentions. As a lay person who has not been shown to be capable of making this specific medical conclusion, the appellant's statements, as well as those made by her daughter, that the Veteran's service-connected SFW, amputation, shrapnel wounds, and scarring caused his cardiomyopathy that ultimately contributed to his death are substantially outweighed by the conclusions of July 2011 VA examiner's opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In short, the most probative medical evidence specifically rules out a relationship between the Veteran's cause of death (due to cardiomyopathy, and congestive heart failure, dementia, old TB, and lobectomy) and his service-connected SFW, amputation, scarring, and shrapnel wounds. The Board places more weight on the opinion of the competent VA medical professional who provided the July 2011 opinion, based on review of the medical records and claims file, than on the lay assertions that the Veteran's service-connected disabilities caused his heart disability, and death. As such, service connection for the cause of the Veteran's death is not warranted. Given this evidentiary picture, the preponderance of the evidence is against finding that any service-connected disorder had a causal connection to the Veteran's death. Although the appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ A.C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs