Citation Nr: 1331322 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 05-39 491 ) 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. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from November 1941 to May 1942 and from September 1942 to April 1946. The Veteran died in September 2004. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In June 2007 the appellant was afforded a Board video hearing before a Veterans Law Judge (VLJ) that is no longer employed by the Board. Consequently, in August 2013 the Board advised the appellant by letter that the law requires that the VLJ who conducts a Board hearing on appeal must participate in any decision on that appeal. 38 C.F.R. § 20.707 (West 2002). In addition, the appellant was asked whether she desired to have a new Board hearing. In September 2013 the appellant declined the offer for another hearing. In August 2007, the Board denied the appellant's claim. The appellant subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2010 Memorandum Decision, the Court vacated the Board's decision and remanded the case for action consistent with the directives contained therein. In November 2010 the Board remanded this case for additional development. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died on September [redacted], 2004, of cerebrovascular accident. 2. At the time of the Veteran's death, service connection was in effect for gunshot wound, through and through, right arm with neuropathy, rated as 30 percent disabling and gunshot wound, chest, rated as 10 percent disabling; the combined disability rating was 40 percent. 3. Cerebrovascular disease was not manifested during the Veteran's period of active service and has not otherwise been shown to be related to military service or a disability of service origin. 4. The evidence of record does not demonstrate that a service connected disability was either the principal or a contributory cause of 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. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in November 2004 and January 2011 the appellant was informed of the evidence and information necessary to substantiate the claim, the information required of her to enable VA to obtain evidence in support of her claim, the assistance that VA would provide to obtain evidence and information in support of her claim, and the evidence that she should submit if she did not desire VA to obtain such evidence on her behalf. In the January 2011 letter the appellant received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the appellant in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In specific consideration of the claim of service connection for the cause of the Veteran's death, the Board notes that in the adjudication of a DIC claim under 38 U.S.C.A. § 1310, when a Veteran had service-connected disability during his lifetime, VCAA notice must include a statement of the conditions for which a veteran was service connected at the time of his or her death. Hupp v. Nicholson, 21 Vet. App. 342, 352-3 (2007). The January 2011 VCAA letter informed the appellant that the Veteran had been service-connected for gunshot wound, through and through, right arm with neuropathy, and gunshot wound chest, during his lifetime. Duty to Assist Service treatment records are associated with the claims file, as are identified private medical records. The general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Accordingly, in march 2011 and May 2013 opinions were obtained that address the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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). The Board finds that the VA opinions obtained in this case is more than adequate. The opinions considered the pertinent evidence of record and provided a rationale for their conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). During the June 2007 Board hearing, to assist the appellant, the Board Member asked questions of the appellant in an effort to better understand her assertions in this case. The Board Member also asked questions in order to better understand the Veteran's condition just prior to his death. The appellant was encouraged to bring any information that she thought relevant to the Board Member's attention. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board finds that there has been substantial compliance with its November 2010 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in March 2013 VA obtained a medical opinion that addressed the medical matters presented by this appeal and contained answers to specific questions enumerated in the November 2010 remand. Further, the appellant was provided notice in compliance with Hupp v. Nicholson, 21 Vet. App. 342, 352-3 (2007). The appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 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 thereto. 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. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service connection will be granted if it is shown that the veteran suffered from disability resulting from an injury suffered or disease contracted in line of duty in active service, or for aggravation in line of duty in active service of a preexisting injury suffered or disease contracted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service incurrence will be presumed for certain chronic diseases, such as malignant tumors, if they become manifest to a compensable degree within a year after the veteran's discharge from active duty. 38 C.F.R. §§ 3.307, 3.309. To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2010). The Veteran's death certificate reflects that he died on September [redacted], 2004, of cerebrovascular accident. At the time of the Veteran's death, service connection was in effect for gunshot wound, through and through, right arm with neuropathy, rated as 30 percent disabling and gunshot wound chest, rated as 10 percent disabling; the combined disability rating was 40 percent. The appellant asserts that the Veteran's service-connected gunshot disabilities were either the principal or a contributory cause of the Veteran's death. At the June 2007 Board video hearing the appellant stated the Veteran had arthritis and a fever before he died. She had known the Veteran since 1990. The appellant stated that before he died the Veteran was very weak and was always complaining of pain in his chest and side; he was also unable to stand. The appellant further indicated that the Veteran was bedridden for about twelve years and she believed that his gunshot wounds had made him weak. The Veteran's service treatment records note that in January 1946 the Veteran suffered a gunshot wound to the right arm and chest. The Veteran's April 1946 service separation examination noted that the Veteran had hypoesthesia of the ulnar and median nerves. No cardiovascular disability or additional neurological disability was noted. Private treatment records dated from December 2003 to September 2004 reflect that the Veteran made complaints of body weakness and epigastric pain. In a January 2011 letter, the Veteran's private physician (RJ, MD) indicated that prior to the Veteran's death he had treated him for chest pains, epigastric pain, and difficulty in breathing. Dr. RJ noted that the Veteran had been admitted for hospitalization prior to his death due to inability to walk and stand associated with body weakness, with a diagnosis of CVA due to hypertension. In March 2011 a VA physician essentially stated that the Veteran's nearly 60 years old gunshot wound residuals had healed and were not an etiologic factor for the Veteran's cerebrovascular accident since the location of the gunshot residuals were distal (far) from the cranium to cause any significant neurologic defects, even with the passage of time. In May 2013 a VA physician indicated that he had reviewed the Veteran's claims file. The examiner stated, in pertinent part, as follows: The death of the veteran occurred around 58 years after he survived the gunshot wounds incurred on that fateful day on the 16th day of January, 1946. The veteran's death had it been due or associated with as claimed with his gunshot wounds would have been premature, unlike his death that occurred 58 years after at age 87 can be mostly ascribe to as an individual's wear and tear with deteriorating physiological functions rendering one's imminent natural passing. The May 2013 VA examiner also noted that no antecedent or underlying cause of death or other significant conditions contributing to the Veteran's death had been noted on the Veteran's death certificate. The Veteran's service treatment records do not show treatment for or a diagnosis of cerebrovascular accident during active military service. The medical evidence shows that the Veteran was not diagnosed with cerebrovascular accident until many years after his discharge from military service. There is also no competent evidence linking a cerebrovascular disability to the Veteran's active service. As for the question of whether the Veteran's death is related to his service-connected gunshot residuals, no health care professional has linked the Veteran's death to his service-connected disabilities. The Board notes that the November 2011 letter from the Veteran's private physician did not link the Veteran's death to his service-connected disabilities. On the other hand, VA examiners have specifically indicated that no such relationship exists. As for the probative value of the May 2013 opinion, the Board observes that the examiner reviewed the pertinent medical evidence and provided a rationale for the opinion expressed. In this regard, the Board notes that the May 2013 VA examiner stated that the Veteran's death had occurred almost 58 years after the gunshot wound and further stated that the Veteran's death at age 87 was mostly due to "wear and tear" with deteriorating physiological functions rendering a natural passing away. The appellant's assertions that the Veteran's service-connected gunshot disabilities were either the principal or a contributory cause of the Veteran's death have been considered. In adjudicating a claim, the Board must assess the competence and credibility of an appellant's statements. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The appellant has testified that before the Veteran died, "he was very weak and he was always complaining of his-of pain in his chest and side and I believe that it is because of his gunshot wounds that he died." She also testified that "the [v]eteran was bedridden before he died. He was bedridden for about twelve years and I believe that his gunshot wounds were the reason (inaudible) because it really made him weak, that's why." The Board finds that the appellant is both credible and competent to give evidence about what she observed or experienced concerning the Veteran's chest pain and body weakness during his life. See Layno v. Brown, 6 Vet. App. 465, 496 (1994). Clearly the appellant could observe the Veteran's weakness and was aware of his complaints of chest pain. Such statements are essentially confirmed in the November 2011 letter from the Veteran's private physician. However, to the extent that such statements about the Veteran's visible medical symptoms constitute a medical opinion concerning the Veteran's death, the Board finds that her statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Whether the Veteran's service-connected disabilities were either the principal or a contributory cause of the Veteran's death is not a question that can be determined by mere observation and is not a simple question. The appellant has provided no evidence that she has training or a background in medical matters. Further, her statements, which were essentially replicated in Dr RJ's November 2011 letter, were considered by the May 2013 VA examiner. For these reasons, the Board finds that the appellant's opinion in this regard is not competent evidence and therefore not probative of any fact in this case. A review of the evidence has revealed that a cerebrovascular accident was not manifested during the Veteran's service or in the first postservice year, and the competent credible medical evidence of record does not relate the Veteran's death to his service-connected gunshot wound disabilities. As the preponderance of evidence is unfavorable to her claim, the Board must the appellant's appeal as to entitlement to service connection for the cause of the Veteran's death. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs