Citation Nr: 1327905 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-10 940 ) 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. ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service in the Philippine Recognized Guerillas from January 1945 to February 1946; he died in August 1990 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from the September 2006 and August 2007 rating decisions and administrative determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In January 2010, the Board remanded the appellant's claim to the Agency of Original Jurisdiction (AOJ) for additional action. Specifically, the Board requested that the AOJ provide the appellant with the necessary notification as required under 38 U.S.C.A. §§ 5102, 5103, and 5103A, and that a VA medical opinion be obtained concerning whether the Veteran's cause of death was etiologically related to his period of active service. In letters dated in March 2010 and August 2010, the RO provided the requisite notification to the Veteran pursuant to the Board remand directives. In addition, a VA medical opinion was obtained in December 2012 and associated with the claims file. The AOJ then readjudicated the issue on appeal and, upon denial of that claim, issued a Supplemental Statement of the Case (SSOC) in February 2013. As such, the Board finds that the RO completed the development requested in the January 2010 Board Remand and complied with the remand instructions. Stegall v. West, 11 Vet. App, 268 (1998). Stegall v. West, 11 Vet. App, 268 (1998). The case has since been returned to the Board for appellate review. 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. The Veteran's original death certificate shows that he died in August 1990 and that the immediate cause of death was cardiorespiratory failure secondary to cor pulmonale and pulmonary tuberculosis. 2. The Veteran's amended death certificate shows that he died in August 1990 and lists bleeding peptic ulcer and anemia as significant conditions which contributed to his demise. 3. The cause of the Veteran's death developed many years after service and was not the result of a disease or injury incurred in active service. 4. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. CONCLUSIONS OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, a disability incurred in or aggravated by his active duty service. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (and its implementing regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. Further, in Dingess v. Nicholson, the Court held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the Veteran with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the Veteran of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case 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. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In the present case, the RO sent the appellant a VCAA notification letter in July 2006, prior to the September 2006 rating decision. The July 2006 letter, however, did not contain any particular explanation of the information and evidence required to substantiate a claim for service connection for the cause of the Veteran's death based on a previously service-connected disability as well as a condition not yet service connected, as required by Hupp. Additionally, the letter did not provide the appellant with appropriate Dingess notice. Pursuant to the January 2010 Board remand, the RO sent the appellant the appropriate VCAA notification letters in March 2010 and August 2010. These letters informed the appellant of the information and evidence generally required to substantiate a claim of service connection for the cause of the Veteran's death, as well as her and VA's respective responsibilities for obtaining the information and evidence. Specifically, the August 2010 letter informed the appellant of the evidence needed to support a claim for DIC benefits based on a disability that was not service connected for which the veteran did not file a claim during his lifetime. In addition, the March 2010 and August 2010 letters outlined VA and the appellant's respective duties for providing evidence, and informed the appellant how effective dates are determined. Although the March 2010 and August 2010 letters were not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to her, as she was subsequently provided adequate notice and was given several years to respond with additional argument and evidence and the claim was readjudicated and an additional Supplemental Statement of the Case (SSOC) was provided to the appellant in February 2013. See Prickett v. Nicholson 20 Vet. App. 370 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The claimant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. She has taken full advantage of these opportunities, submitting statements, affidavits and evidence in support of her claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The appellant has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the appellant. Therefore, with respect to the timing requirement for the notice, the Board concludes that VA has fulfilled its duty to notify under the VCAA and to decide this appeal would not be prejudicial to the claimant. VA has also satisfied its duty to assist the appellant at every stage of this case. All available records associated with the Veteran's period of service, as well as all identified post-service private treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claim. Pursuant to the January 2010 Board remand, a VA medical opinion was obtained in December 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the December 2012 VA opinion obtained in this case was predicated on a reading of the service and post-service treatment records in the Veteran's claims file and considered all the pertinent evidence of record. Indeed, the December 2012 VA opinion addresses all the necessary questions listed in the January 2010 remand, and the December 2012 examiner provided a rationale in support of his opinion, which includes a discussion of the clinical data and medical principles as applied to the evidence. When considered with the other evidence of record, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion regarding the issue on appeal has been met. 38 C.F.R. §3.159(c)(4). 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). II. Analysis The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). 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 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). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include certain types of heart disease, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Further, tuberculosis is presumed to have been incurred in service if manifested to a compensable degree within three years of discharge from service. Id. 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). The appellant asserts that the Veteran's physical ailments towards the end his service, namely his chest pain and malaria, were early manifestations of chronic health problems developed later on which led to his cause of death. See April 2008 notice of disagreement (NOD), and January 2009 substantive appeal. The appellant has also submitted an affidavit dated in February 1991 and issued by the Veteran's former servicemen, P.D. and J.P., both of whom attested to the fact that they served in the same unit as the Veteran. In their affidavit, P.D. and J.P. attested to the fact that the Veteran experienced in-service symptoms of "chest pain and malaria," and was suffering due to his poor health. A March 1991 affidavit issued by another one of the Veteran's former serviceman, S.C., described some of the Veteran's military duties in service, and noted that the Veteran continued to perform these duties until he became sick from chest pain and malaria and was relieved from active duty due to his physical disqualifications. The original certificate of death indicates that the Veteran died in August 1990. The immediate cause of death was listed as cardiorespiratory failure secondary to cor pulmonale and pulmonary tuberculosis. An amended certificate of death also lists anemia and bleeding peptic ulcer as other significant conditions contributing to death. At the time of the Veteran's death, service connection was not in effect for any disability. In addition, the Board notes that the Veteran did not have a cardiovascular or respiratory disorder that was causally or etiologically related to his military service. Turning to the available service records, the Board notes that the January 1946 Certificate of Discharge indicates that the Veteran was discharged from service due to physical disqualifications. His physical condition at discharge was described as poor, and it was noted that he experienced chest pain and malaria upon separation from service. The evidence of record, however, is clear for any complaints, signs or notation of chest pain, or any cardiovascular or respiratory problems for many years after the Veteran's separation from service. The evidence of record is also clear for any signs of a bleeding peptic ulcer and anemia until several decades after the Veteran's military service. In fact, the first evidence of record reflecting that the Veteran suffered from cardiovascular and/or respiratory problems after service, is a March 1990 radiology report of a chest x-ray, the findings of which revealed signs of atherosclerosis and minimal bilateral pulmonary tuberculosis. An April 1990 Medical Certificate reflects that the Veteran presented at the hospital with "progressive body weakness accompanied by on [and] off cough of [two] months duration. . . ." Based on his evaluation of the Veteran, his private physician, R. D., M.D., diagnosed the Veteran with Koch's pulmonale, anemia, and a bleeding peptic ulcer. Both these records are dated in 1990, more than forty-four years after the Veteran's discharge from service. However, in a handwritten letter, dated in March 1991, another one of the Veteran's physicians (whose name the Board is unable to decipher), wrote that the Veteran had visited him on several occasions for treatment of his pulmonary tuberculosis. Based on this physician's recollections, the Veteran presented at his office in 1964 with complaints of weakness, coughing, chest and back pain, and reported to him that he had consulted with another physician regarding these same symptoms immediately after his separation from military service. In a letter dated in October 2006, the Veteran's former physician, B.R., M.D., identified himself as the Municipal Health Officer of a certain municipality in the Philippines between May 1964 to September 1987, and explained that the Veteran consulted with him during this time. According to Dr. R., during these visits, the Veteran described a history of weakness, coughing, and chest and back pain due to the lack of medical supplies in service. The Veteran also claimed that upon discharge he sought the medical service of a medical practitioner, A.V., M.D., who reportedly treated him for his pulmonary tuberculosis. According to Dr. R., the Veteran reportedly experienced recurring symptoms of a similar nature three years later but because Dr. A.V. had moved, he started to self-medicate-something which served to worsen his health. Dr. R. also recounted that the Veteran visited his office sometime in 1966 for evaluation and treatment, at which time he (Dr. R.) treated him with antibiotics and multivitamins for a three month period, which helped improve the Veteran's condition. In an affidavit, date stamped as received in July 2007, the appellant indicated that any records issued by Dr. A.V. were unavailable, as he had deceased; however, given the evidence of record indicating that the Veteran may have exhibited signs of respiratory problems close in time to his discharge from service, the Board in its January 2010 remand instructed the RO/AMC to obtain a medical opinion. See Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (in considering cause of death claims, VA must ask, under 38 U.S.C.A. § 5103A(a), whether a medical opinion is "necessary to substantiate the claim," or "no reasonable possibility exists that such assistance would aid in substantiating the claim"). Such an opinion was obtained in December 2012, and, for the following reasons, the Board finds that the opinion complied with the Board's remand instructions, was adequate, and, along with the other evidence warrants a denial of the claim. The physician who provided the opinion indicated that he had thoroughly reviewed the claims file, and took note of the pertinent evidence of record. Based on his review of the claims file, the VA physician determined that the Veteran's fatal condition, to include his pulmonary tuberculosis, was less likely than not incurred in, or caused by an in-service injury, event or illness. Upon reviewing the March and April 1990 hospital reports, the VA physician noted that the Veteran's lung findings during his hospitalization showed "harsh breath sounds, bilateral ronchi with no wheezing." The VA physician further stated that the record was clear for any chest x-ray findings of pulmonary tuberculosis or a positive sputum acid-fast bacilli (AFB) results in service and within one year from his discharge, and therefore "his fatal disease, including his [tuberculosis] less likely as not began during service or were continually present from service discharge until the time of his death." The VA physician also noted that complaints of chest pain and malaria on the Veteran's discharge certificate were not definitive for a diagnosis of pulmonary tuberculosis, and explained that complaints of chest pain "in the absence of on and off cough, anorexia and findings of harsh breath sounds with ronchi similar to what was noted in his 1990 hospital report is not diagnostic of PTB." The examiner further acknowledged the March 1991 and October 2006 letters issued by the Veteran's physicians indicating that the Veteran was treated for respiratory symptoms after his discharge, but noted that these visits were in the "1950's" which was more than three years after his discharge from service in 1946. Based on the above, the Board finds that the evidence of record weighs against service connection for the cause of the Veteran's death based on the theory that the Veteran's fatal conditions, to include his pulmonary tuberculosis, first manifested in service. The December 2012 opinion summarized above offered a clear conclusion as to why the Veteran's in-service symptoms of chest pain, as well as his diagnosis of malaria, were neither signs nor manifestations of the Veteran's subsequently developed fatal conditions, including his pulmonary tuberculosis, and explained the reasons for this conclusion based on a detailed and accurate characterization of the evidence. The Board must therefore accord this opinion substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board acknowledges the March 1991 handwritten letter issued by one of the Veteran's physicians indicating that the Veteran had been under his medical care for pulmonary tuberculosis on several occasions in the past, and that the Veteran began consulting with him for complaints of weakness, and chest and back pain in 1964. The Board also acknowledges the October 2006 letter wherein Dr. R. recounted having treated the Veteran for respiratory problems during the 1960's. The Board, however, assigns little probative weight to these letters. Indeed, even if the Veteran did receive treatment for respiratory problems, to include pulmonary tuberculosis, with Dr. R., he did not begin doing so until 1964, eighteen years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). In addition, while the Veteran reportedly claimed to have received treatment for his pulmonary tuberculosis with various physicians very soon after his discharge, there is no objective evidence to substantiate this claim as any records generated with Dr. A.V. are unavailable in light of the fact that he is since deceased. Indeed, the December 2012 VA physician acknowledged these letters as well as any statements allegedly made by the Veteran, and still concluded that the Veteran's fatal conditions were not incurred in service. Moreover, despite their submissions relaying the Veteran's reported statements of having received treatment for pulmonary tuberculosis very soon after his discharge from service, neither the March 1991 physician nor Dr. R. determined that the Veteran's pulmonary tuberculosis was incurred in service. Both physicians merely documented their recollections of statements made by the Veteran thirty to forty years prior. The lack of objective evidence to corroborate the Veteran's reported statements, as well as the large gap in time between the Veteran's self-described history and the dates in which these letters were issued diminishes the reliability of the physician's recollections. Therefore, the Board finds that the February March 1991 and October 2006 letters are not persuasive evidence. The Board has considered the appellant's contention that a relationship exists between the Veteran's cause of death and his service, to include her belief that his fatal conditions, to include his pulmonary tuberculosis, was incurred in service. However, this case at hand is not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran's military service and his disability and/or death. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Although the appellant is competent to report her observations on the Veteran's medical symptoms and discomfort during his lifetime, she is not competent to render a medical opinion addressing the etiology of his cardiorespiratory failure, cor pulmonale, pulmonary tuberculosis, bleeding peptic ulcer and anemia, without evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159(a)(1), (2); See also Jandreau at 1377 (Fed. Cir. 2007). She does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. In light of the above, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine does not apply and the claim is denied. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs