Citation Nr: 1329690 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-36 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991. He served in the Southwest Asia Theater of operations during the Persian Gulf War from January to May 1991. He also served in the Puerto Rico Army National Guard (PRANG) and had several periods of active duty for training (ACDUTRA) and inactive duty for training, including a period of ACDUTRA from March 1960 to September 1960. The Veteran died in December 2006. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Other Preliminary Matters In a letter in June 2010, the RO notified the Appellant that her appeal had been certified to the Board. The Appellant was notified that she had 90 days from the date of the letter to ask for a hearing before the Board and that if she filed a request after 90 days she had to explain why the request was not timely filed and that the Board would decide whether or not to grant the request. She was advised to consult with her representative or to see 38 C.F.R. § 20.1304. There had been no previous request for a hearing. In November 2011, the Appellant's representative, Disabled American Veteran submitted argument on the Appellant's behalf. There was no request for a hearing. In June 2012, the Appellant's representative requested an extension of time to file additional evidence, which the Board granted. There was no request for a hearing. In March 2013 and in August 2013, the Appellant's representative submitted argument on the Appellant's behalf. There was no request for a hearing. In September 2013, the Appellant's representative submitted a "Request for a hearing for the issue of the cause of death." Under 38 C.F.R. § 20.1304(a), the Appellant has a period of 90 days following the mailing of notice that an appeal has been certified to the Board for appellate review, during which a request for a personal hearing may be submitted to the Board. After the expiration of the 90-day period, the Board will not accept a request for a hearing unless the Appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action. The Board finds that the request for "a hearing" without an expressed reason why the request was delayed does not constitute good cause, and the Appellant's request for a hearing is denied. The request for the hearing is therefore referred to the RO without further action by the Board. Any hearing granted as a result of the referral may be treated as the basis for a reopened claim, if appropriate. If testimony presented at such a hearing is found to be the basis of an allowance of the benefit, the effective date of the award will be the same as if the benefit had been granted by the Board as a result of the appeal which was pending at the time that the hearing request was received. 38 C.F.R. § 20.1304(b). FINDINGS OF FACT 1. The Veteran died in December 2006, and the death certificate lists the cause of death as sepsis; other significant conditions that were listed as contributing to death were renal failure, metabolic acidosis, and colon cancer with metastasis. 2. The Veteran's death by sepsis and the other fatal contributory causes were not incurred in service or were otherwise related to service. 3. The Veteran's service-connected disabilities at the time of his death were cervical spine laminectomy with degenerative joint disease and myelopathy, limitation of motion of the right shoulder, and right hand atrophy; and a service-connected disability is not shown to have caused or contributed materially in producing or hastening the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for dependency and indemnity compensation, including the cause of death, notice under 38 U.S.C.A. § 5103(a) 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 the claim based on a previously service-connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in March 2007. The Appellant was notified of the type of evidence that was required to substantiate the claim for the cause of death. The Appellant was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records. As for content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the provisions for the effective date of the claim and for the degree of disability assignable); and of Hupp v. Nicholson, 21 Vet. App. 342 (2007) (an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected, except for a statement of the conditions for which a Veteran was service-connected at the time of his death). To the extent the provisions for the effective date of the claim and for the degree of disability assignable were omitted, as the claim is denied, there can be no possibility of any prejudice to the Appellant with respect to any defect in the VCAA notice pertaining to the effective date of the claim and the degree of disability assignable. To the extent that a statement of the Veteran's service-connected disabilities was omitted in the VCAA notice, the service-connected disabilities were included in the statement of the case. If VA does not provide adequate notice of any of element necessary to substantiate the claim, the burden is on the claimant to show that the notice error was prejudicial. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). After the Appellant was informed of the Veteran's service-connected disabilities, there has been no allegation of prejudicial error by either the Appellant or her representative. And the Board finds that any defect in the content of the VCAA notice has not affected the essential fairness of the adjudication, that is, the opportunity for the Appellant to submit evidence and to be heard on the claim. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained the service records, VA records, and private medical records. In April 2012, December 2012 and May 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion and subsequent addendums from the Veterans Health Administration (VHA) on the question of a causal relationship between the Veteran's cause of death and service. As the VHA expert considered the Veteran's medical history and described the disability in sufficient detail and provided a rationale to support the conclusions reached in the opinions, the Board finds that the VHA opinions adequate to decide the claim of service connection for the cause of the Veteran's death. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). The Appellant and her representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. The Appellant responded and the Board is proceeding with appellate review. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. When any veteran dies from a service-connected disability, the veteran's surviving spouse is entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability, which is causally related to service, was either the principal or a contributory cause of the veteran's death. 38 C.F.R. § 3.312(a). For a service-connected disability to constitute a principal cause of death, it must be shown to be the 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). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312(c). Although there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c). Evidence The Veteran's adjudicated service-connected disabilities were cervical spine laminectomy with degenerative joint disease and myelopathy, limitation of motion of the right shoulder, and right hand atrophy with a combined rating of 70 percent. The Veteran was rated totally disabled based on individual unemployability since May 2003. In a decision in May 2001, the Board denied service connection for diabetes. The death certificate shows that the Veteran died in December 2006 at a private hospital. The immediate cause of death was sepsis. Other significant conditions that were listed as contributing to death were renal failure, metabolic acidosis, and colon cancer with metastasis. Private medical records show that in May 1977 the Veteran was seen for diabetes mellitus and he was prescribed insulin. There are no records from 1977 until 1983 when the records again indicate a diagnosis of diabetes as well as glucose and ketones in the urine and a fasting blood sugar level of 262. In May 1984, the blood sugar level was 262 and July 1984 it was 100 to 120. Thereafter, until active service, the Veteran's diabetes was treated with insulin. The records suggest that the physicians monitoring his condition changed the amount of insulin, but there does not appear to be any record of the blood sugar levels or other laboratory test results for this period. The only other medical records before active service consist of records from the National Guard. The records contain examinations in January 1959 (his enlistment), September 1964, February 1966, February 1971, February 1976, February 1980, and October 1982, all of which are negative for sugar or albumin in the urine. On quadrennial examination in August 1986, the Veteran had 1 g/dl% glucose in his urine. Similar findings were noted on urinalysis in September 1986. During active service in December 1990, the Veteran's fasting blood sugar was 210 mg/dl. On separation examination in April 1991, the Veteran gave a history of sugar in his urine, high blood pressure, and recurrent back pain. He stated that he was in excellent health and denied taking any current medication or having any treatment. The diagnoses were hypertension, mild hyperglycemia, and chronic low back pain. Following his separation from active service, the Veteran was treated by VA. In August 1991, fasting blood sugar was 367 with negative acetone. The diagnosis was diabetes mellitus and prescribed medication. In September 1991, fasting blood sugar was 399 and 368 with negative acetone. Urinalysis was 4+ for glucose. Thereafter, the Veteran was monitored and treated for diabetes with varying levels of fasting blood sugars from as low as 140 (October 1991) to 363 (December 1991 and February 1992) to 526 (May 1998). His diabetes was described as uncontrolled. On VA examination in September 1994, the Veteran gave a history of insulin dependent diabetes mellitus since 1981. By July 1997, the Veteran was diagnosed with diabetic retinopathy. In January 2001, he was treated for a foot ulcer. In February 1991, diabetes was described as uncontrolled. In November 2001, the Veteran had early renal insufficiency. In August 2002, an EMG/NCS showed peripheral neuropathy, which was interpreted as including a diabetic component. In November 2006, the Veteran was admitted to a private hospital with a previous diagnosis of end stage renal disease and colon cancer with metastasis to the liver. He was admitted because of a malfunctioning hemodialysis catheter. At first, he appeared to do well, but eventually went into septic shock and metabolic acidosis which ultimately ended with the Veteran's death. In April 2012, a VHA expert in internal medicine expressed the opinion that it was less likely than not that the preexisting diabetes mellitus was aggravated by active service. The VHA expert explained that the blood sugar levels were poor control prior to, during, and after service and the blood sugar levels were significantly worse after separation from service. The VHA expert noted that kidney disease was one of the complications of diabetes. In an addendum dated December 2012, the VHA expert expressed the opinion that there was clear and obvious evidence that the preexisting diabetes mellitus was not aggravated by service. In an addendum in May 2013, the VHA expert expanded on the rationale for the conclusion reached in the opinion in April 2012. The VHA expert explained that the Veteran's blood sugar was 262 in April 1983 prior to service and was 210 in December 1990 during service showing that his blood sugar was more out of range prior to service than during service. Furthermore, there were numerous blood sugars during the period after service from August 1991 to December 1991 that appeared to be worse than during service. The VHA expert therefore found that the Veteran had better sugar control during service and diabetes mellitus was not aggravated by service. Analysis The Appellant does not argue and there is no competent lay or medical evidence that the fatal sepsis, renal failure, metabolic acidosis, and colon cancer with metastasis were present in service or that colon cancer manifested to a compensable degree within one year following separation from service in 1991 as colon cancer was not shown until hospitalization in November 2006. The Appellant also does not argue and there is no competent lay or medical evidence that the service-connected disabilities, namely, cervical spine laminectomy with degenerative joint disease and myelopathy, limitation of motion of the right shoulder, and right hand atrophy caused or contributed materially in producing or hastening the Veteran's death. The Appellant does assert that the Veteran's service either caused or aggravated diabetes, which contributed to the renal insufficiency, resulting in the Veteran's death. The record shows that diabetes mellitus clearly preexisted service. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). There is no competent medical evidence of record showing that the Veteran's preexisting diabetes mellitus that contributed to renal failure underwent an increase in severity during service. The VHA expert provided a well-supported opinion that the Veteran's diabetes mellitus was not aggravated by service as the medical evidence shows that the blood sugar levels were lower during service than prior to and after service. The VHA expert provided a definitive opinion that diabetes mellitus did not undergo an increase in severity during service. The VHA expert also provided rationale and cited to specific evidence in the file as support for the opinion. The opinion was based upon review of the claims file and is found to be persuasive, which opposes rather than supports the claim. To the extent that the Appellant attributes the Veteran's cause of death to complications of diabetes, the Appellant as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board. Although the Appellant is competent to describe symptoms she observed before the Veteran's final illness, the Appellant as a lay person is not competent, that is, not qualified through specialized education, training, and expertise to offer an opinion on medical causation. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses.). The Appellant's opinion as a lay person is limited to inferences that are rationally based on her perception and does not require specialized education, training, or experience. As a lay person, the Appellant without specialized education, training or experience is not competent to infer based on personal observation alone that the Veteran's cause of death was due to aggravation of preexisting diabetes. Although the Appellant is competent to relate contemporaneous medical diagnoses and symptoms that later support a diagnosis by a medical professional, there is no contemporaneous medical diagnoses or later diagnosis of a medical professional that relates the Veteran's death to an in-service injury, disease or event, including by aggravation of preexisting diabetes, or that a service-connected disability caused or contributed to the cause of the Veteran's death. For these reasons, the Board rejects the Appellant's statements as competent evidence to substantiate the claim that the cause of the Veteran's death was related to service or to a service-connected disability. As there is no competent lay or medical evidence in favor of the claim, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs