Citation Nr: 1328251 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-10 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1952 to April 1956. He died on September [redacted], 2007. The appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in April 2012 and April 2013. (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 died on September [redacted], 2007, at the age of 74. The immediate cause of death as shown on his death certificate was congestive heart failure due to ischemic cardiomyopathy due to coronary artery disease. No autopsy was performed. 2. At the time of his death, the Veteran was not service connected for any disabilities. 3. No disability traceable to military service caused or contributed to the Veteran's cause of death. CONCLUSION OF LAW A disability incurred or aggravated in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to military service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for DIC benefits, § 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 § 5103(a)-compliant notice. Here, the appellant was sent a letter in November 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. (These files together comprise the claims file.) The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. In compliance with the Board's April 2012 remand, VA sent the appellant an April 2012 letter explaining how to establish her status as a surviving spouse, specifically the need to submit evidence of the Veteran's divorce in 1959, prior to his marriage to the appellant. This letter also asked the appellant to identify the source that provided her with the additional VA treatment records that she had submitted. In her April 2012 response, the appellant stated that she had found the additional original record among the documents that had been sent to her from the Kansas City VA from their archives. In April 2012, VA again contacted the Kansas City VAMC, requesting that any additional paper records pertaining to the Veteran and dated between 1956 and 1999 be provided, further instructing the VAMC that if any such records had been retired, they must be recalled and submitted to the Appeals Management Center (AMC). As a result, additional VA treatment records have been received and associated with the claims folder. In compliance with the Board's April 2013 remand, VA provided medical review of the file in June 2013. This evaluator reviewed the evidence of record, the Veteran's subjective complaints made during his lifetime, and the appellant's contentions. Thereafter, this evaluator offered an opinion as to whether disability was attributable to military service, accompanied by a rationale. Therefore, this evaluation is adequate for VA purposes. The evaluator did not address the relationship, if any, between the Veteran's acquired psychiatric disability and his fatal heart conditions; however, as the evaluator determined that the Veteran's acquired psychiatric disability was not related to service, the issue of its relationship to the Veteran's cause of death need not be further addressed. Thus, VA has substantially complied with the April 2012 and April 2103 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, 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). Service Connection--Cause of Death According to his death certificate, the Veteran died on September [redacted], 2007, at the age of 74 at St. Luke's Hospital in Kansas City, Kansas. The immediate cause of death as shown on his death certificate was congestive heart failure due to ischemic cardiomyopathy due to coronary artery disease. Diabetes mellitus is listed as another significant condition. No autopsy was performed. Service connection may be granted for the cause of the Veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. At the time of his death, the Veteran was not service connected for any disabilities. The appellant has argued that the Veteran's fatal congestive heart failure was caused by an acquired psychiatric disability, which in turn was caused by his military service. As the Veteran was not service connected for a heart disability, such as congestive heart failure, ischemic cardiomyopathy, or coronary artery disease, or an acquired psychiatric disability at the time of his death, the Board must first address whether any such disability is attributable to military service. In doing so, the Board notes that the Veteran himself had submitted a claim of service connection for PTSD. Unfortunately, the Veteran died prior to the adjudication of that claim. The accrued benefits claim for this issue was denied in the April 2013 Board decision as the record available at death did not contain competent evidence of a causal link between the Veteran's psychiatric disorder and his military service. (The accrued benefit claim was limited to the evidence of the record available at the time of the Veteran's death.) Below, the Board will address the issue of service connection in light of all the evidence, including additional evidence received since the Veteran's death and in the context of whether any disability causing or contributing to his death is traceable to military service. In order to prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, secondary service connection may be established if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran's death certificate provides sufficient evidence of diagnoses of congestive heart failure, ischemic cardiomyopathy, and coronary artery disease. Earlier treatment records show evidence of a heart condition dating back to 1981. Nevertheless, no heart condition is shown in the Veteran's service treatment records. Moreover, neither the Veteran nor the appellant have identified an incident during service that can be causally linked to the Veteran's fatal heart process. As the service treatment records are silent as to any complaints or treatment for a heart disorder or vascular condition affecting the heart, the post-service evidence does not indicate any complaints of or treatment for a heart condition until several years following separation, and the record contains no competent evidence suggesting a causal relationship between any fatal heart condition and active service. Thus, direct service connection based on heart disability is not warranted. In this case, the appellant's argument has been that the Veteran's fatal heart condition was caused by psychiatric disability that in turn was related to his military service. In that regard, the record establishes that the Veteran had a diagnosis of a heart condition and that it led to his death, but not a service-connected disability. In order for the appellant to be entitled to service connection for the Veteran's cause of death under her theory of entitlement, there first must be a showing that a psychiatric disability was traceable to military service and secondly that it caused or aggravated a fatal disease process, i.e., heart disease. The evidence of record does not contain a diagnosis of posttraumatic stress disorder (PTSD). While the Veteran's private physician stated in an August 2008 letter that he "strongly believe[d] that [the Veteran] had post traumatic distress disease," there is no indication that this was based on the DSM-IV criteria. See 38 C.F.R. § 4.125. The June 2013 VA evaluator specifically noted that the Veteran did "not give an identifiable stressor that would fit the criteria necessary for a diagnosis of PTSD. He has been seen by many other providers at VA . . . and none of those providers who treated him in person gave him a diagnosis of PTSD. None of his treatment record[s] reflect symptoms of PTSD, nor do any of the treatment records reflect any re-experiencing symptoms. The veteran was treated for Bipolar disorder, not PTSD." Moreover, throughout the record, the mental health professionals have repeatedly noted a history of bipolar disorder that was noted to be in full remission from the time of the claim through the Veteran's death. See generally, VA Outpatient Treatment records; see also December 2000 Trinity Lutheran Hospital record. Despite this disability being deemed "in remission," the record shows that the Veteran remained on psychiatric medication. See March 2007 VA treatment record. As such, the current disability requirement was met with regard to the diagnosis of bipolar disorder. See Clemons, 23 Vet. App. 1. The Veteran's service treatment records are silent with regard to psychiatric complaints or treatment during service. His April 1956 separation examination does not note any psychiatric abnormality. However, when asked about in-service events, the Veteran stated that his in-service injury was his repeated exposure to gunfire. (The Veteran was competent to provide lay testimony regarding the circumstance of his service and the Board finds his testimony of exposure to gunfire while aboard the U.S.S. Rochester to be credible. Thus, an in-service event is conceded.) The third requirement for direct service connection is a nexus between the in-service disease or injury and the Veteran's disability. To this end, VA obtained a medical nexus opinion in June 2013. The June 2013 VA evaluator, based on a review of the claims file, found that it was less likely than not that the diagnosed acquired psychiatric disability had its onset in service, had its onset within one year of the Veteran's separation from service, or was otherwise the result of a disease or injury in service, including the in-service exposure to gunfire. Instead, this evaluator noted that the Veteran's history of childhood abuse suggested that he "most likely entered the military with a psychiatric disorder or at least a strong vulnerability." The record does not contain a positive medical nexus opinion regarding the Veteran's acquired psychiatric disability. To the extent that that appellant believes that the Veteran's acquired psychiatric disability was due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the appellant has stated that she first met the Veteran in late 1959, which was three years after his separation from service. See Appellant's Statement dated April 2012. As such, the appellant did not know the Veteran during his service or immediately following his separation from service and, therefore, she is not competent to provide lay evidence regarding observations of his state during military service. The record does, however, contain lay evidence provided by the Veteran prior to his death. In these statements, the Veteran stated that he believed that his acquired psychiatric disability was caused by his active service. Additionally, he reported a nervous breakdown in 1959, three years after his separation from service. Given the three-year delay, this does not appear to be the type of immediately observable cause-and-effect relationship, for which the Veteran was competent to address etiology. See Jandreau, 492 F.3d 1372. This is particularly so given the complexities of diagnosing and establishing the cause of a psychiatric disability. Moreover, the Veteran's statements regarding etiology are found not competent. While treatment for that incident is not of record, a VA treatment record from April 1968 refers to hospitalization for psychiatric treatment nine years earlier. This record did not refer to any correlation between the Veteran's psychiatric symptoms (then diagnosed as passive aggressive personality trait disturbance, aggressive type, with a tendency towards decompensation) and his military service. Instead, it discussed the Veteran's abusive childhood and marital difficulties. These statements were made for medical treatment purposes are highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, there is some indication in the record that the Veteran was a poor and unreliable historian. See May 2003 VA treatment record. Given that the Veteran did not disclose an association between his psychiatric symptoms and his military service in the medical evidence taken 12 years after his separation, his assertions of such a connection several decades later, while applying for service connection benefits, are found not credible. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). Based on the above, the record does not establish a connection between the Veteran's acquired psychiatric disability and his military service. Even if a psychiatric disability pre-existed the Veteran's period of service, as intimated by the 2013 reviewer, there has been no competent evidence suggesting any worsening during the Veteran's period of service. Moreover, even with application of the presumption of soundness at entry, see 38 U.S.C.A. § 1111 (West 2002), there has been no suggestion by competent evidence that any psychiatric disability manifested itself during the Veteran's period of service such that it may be concluded that a psychiatric disability had started in service. Since a relationship to military service cannot be established for the Veteran's acquired psychiatric disability, service connection for the fatal heart condition as a consequence of an acquired psychiatric disability is not warranted. For the reasons provided above, the preponderance of evidence is against the appellant's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs