Citation Nr: 1334362 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-02 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active military duty from September 1947, to November 1967. The Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a January 2010 substantive appeal, the appellant requested a hearing before the Board sitting at the RO. The appellant withdrew the request in writing in November 2011. The Virtual VA paperless claims processing system and Veterans Benefits Management System do not contain additional evidence relevant to this appeal. FINDINGS OF FACT 1. The Veteran died in September 2007. 2. The primary and contributing causes of death listed on a Florida Certificate of Death are cardiac arrest, ventricular tachycardia, coronary artery disease, and left ventricular dysfunction. 3. At the time of his death, the Veteran had the following service-connected disabilities: hiatus hernia with duodenal ulcer, rated as 30 percent disabling; postoperative residuals of arthrotomy of the right knee; rated as 10 percent disabling; varicose veins, rated as 10 percent disabling; residuals of a fracture of the left ring finger, rated as noncompensable; and otitis media, rated as noncompensable. The combined rating was 40 percent. 4. A service-connected disability was not a primary or contributing cause of death. 5. At the time of his death, the Veteran was not in receipt or entitled to received compensation for disabilities that were totally disabling. 6. The evidence does not establish that chronic cardic disability) had its onset in service, became manifest to a compensable degree during the one-year period following the Veteran's discharge from service, or were otherwise attributable to an in-service disease, injury, or event, to include in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of death are not met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). 2. The criteria for Dependency and Indemnity Compensation are not met. 38 U.S.C.A. §§ 1310, 1318 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, the notice must be tailored to the claim. The notice should 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 (2007). The 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In December 2007 and April 2009, the RO provided notices that did not meet all the requirements. The notices explained the criteria to establish entitlement to DIC and the appellant's and VA's respective responsibilities to obtain relevant evidence. Neither notice provided the appellant with a complete statement of the conditions for which the Veteran was service connected at the time of his death, nor did the initial notice provide the criteria to substantiate a DIC claim based on a condition not yet service connected. In a September 2012 remand, the Board in part directed that a complete notice be provided to the appellant. Later that month, the Appeals Management Center (AMC) provided a notice that met the requirements. Although adequate notice was not provided prior to the initial decision, the Board concludes that the timing error was not prejudicial to the appellant because adequate notice was provided followed by readjudication of the claim in January 2013 supplemental statement of the case with an opportunity to respond. The Board also finds that VA's duty to assist has been satisfied. Relevant VA and indentified private medical records have been associated with the claims file. In her February 2008 Notice of Disagreement, January 2010 VA Form 9, and January 2010 VA Form 21-4138, Statement in Support of Claim, the appellant noted that she had or was seeking additional relevant evidence. In a September 2012 remand, the Board directed a request to the appellant for the identification of the sources of additional evidence and authorization to obtain relevant records including records of end of life care of the Veteran at Florida Hospital Orlando where the Veteran died. The request was made by the AMC in correspondence to the appellant and her representative in September 2012. No response has been received. In a May 2013 brief to the Board, the representative noted that the notice misspelled the name of the hospital as "Florid Hospital Orlando" and that the error may be part of the reason for the absence of a response. The Board notes that the notice also referred to the appellant's own treatment (vice the Veteran's treatment) at that hospital. The Board finds that these errors were not confusing or prejudicial to the appellant because the remainder of the correspondence and the entire process of this claim addressed the Veteran's (not the appellant's) disabilities, treatment, and causes of death. The Veteran's death certificate clearly identifies the name of the facility where the Veteran received his end of life care, and the misspelling is not so egregious as to confuse the reader. Moreover, the appellant asserted that the Veteran died from a service-connected disability and expressed the intent to obtain evidence to support that assertion. The duty to assist is not a one way street, and even if the correspondence were not clear, some response or request for clarification would have been reasonable. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 38 U.S.C.A. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). VA obtained a record review and medical opinion in December 2012. The results have been included in the claims file. The opinion involved summary of the history from a review of the record including statements by the Veteran during his lifetime and by the appellant, and an opinion on the causes of the Veteran's death. The Board concludes that the review was performed by a qualified physician with appropriate consideration of the history, review of medical literature, and an opinion with rationale. Therefore, the Board finds that the record review and opinion are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board issued a remand in September 2012. Following a review of the additional evidence, the Board concludes that there has been substantial compliance. The AMC requested any additional evidence from the appellant and obtained a VA record review and opinion. The Board finds that there has been substantial compliance with the mandates of its remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. II. Service Connection for the Cause of the Veteran's Death The Veteran served as a U.S. Air Force supply specialist, retiring at the rank of Staff Sergeant. In a January 2010 notice of disagreement, the appellant contended that the Veteran's death was caused by service-connected varicose veins. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2011). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6) (ii) (2013). Under 38 C.F.R. § 3.307(a)(6) , a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. Id. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id.; see also 38 C.F.R. § 3.313(a); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). If a veteran is not shown to have been exposed to an herbicide agent during active military, naval, or air service, and such exposure cannot be presumed under 38 C.F.R. § 3.307(a)(6) , service connection for certain chronic disorders, such as malignant tumors and cardiovascular-renal disease, may nevertheless be established under the provisions of 38 C.F.R. §§ 3.307(a)(1)(3) and 3.309(a). See 38 U.S.C.A. §§ 1112, 1113 (West 2002 & Supp. 2011). Under those provisions, if a veteran serves for 90 days or more after December 31, 1946, and a malignant tumor or cardiovascular-renal disease becomes manifest to a degree of 10 percent or more during the one-year period following his separation from service, service connection for the condition will ordinarily be presumed. But see 38 C.F.R. § 3.307(d) (2013) (indicating that the presumption is rebuttable). Alternatively, if a veteran is unable to establish service connection under any of the presumptive provisions set out in 38 C.F.R. §§ 3.307 and 3.309, service connection may be established on a "direct" basis by submitting proof that the disease was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Generally, in order to prove "direct" service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran's death will be considered service-connected where a service-connected disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that 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). To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. See 38 C.F.R. § 3.312. 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). The Veteran died in September 2007. The immediate and underlying causes of death listed on a Florida Certificate of Death are cardiac arrest, ventricular tachycardia, coronary artery disease, and left ventricular dysfunction. At the time of his death, the Veteran had the following service-connected disabilities: hiatus hernia with duodenal ulcer, rated as 30 percent disabling; postoperative residuals of arthrotomy of the right knee; rated as 10 percent disabling; varicose veins, rated as 10 percent disabling; residuals of a fracture of the left ring finger, rated as noncompensable; and otitis media, rated as noncompensable. The combined rating was 40 percent. VA also recognized the following non-service-connected disorders: arteriosclerotic heart disease, post myocardial infarction; a nervous condition; and bilateral hearing loss. As noted, the death certificate and the records leading up to the Veteran's passing show that he died of cardiac arrest, ventricular tachycardia, coronary artery disease, and left ventricular dysfunction. The appellant does not contend and the record does not show that the Veteran served in the Republic of Vietnam. While coronary artery disease is a disability which is presumed to have resulted from exposure to certain herbicide agents such as Agent Orange, and Veterans who served in Vietnam during the period of January 9, 1962, to May 7, 1975, are presumed to have been exposed to herbicides, the presumption of service connection for disabilities associated with exposure to herbicides does not apply here. See. 38 C.F.R. §§ 3.307, 3.309(e) (2013). 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service treatment records are silent for any symptoms, diagnoses, or treatment for any form of heart disease. In a September 1966 report of hospitalization for a knee disorder, the attending physician noted that the Veteran had undergone vein stripping of the right leg in 1952 with a good result. There are no records of this procedure in the file. The Veteran did not report residuals of the vein stripping on his June 1967 retirement physical examination, and the examining physician noted no heart or vascular abnormalities. However, in March 1968, a VA examiner noted post-operative scarring of the right leg consistent with ligation of the right saphenous vein but no other vein abnormalities. In April 1968, the RO granted service connection and a noncompensable rating for residuals of varicose veins. In August 1977, the Veteran was treated at a private hospital for severe chest pain. Clinical investigation revealed indications of an interior myocardial infarction. In December 1977, an attending physician at a naval medical center diagnosed arteriosclerotic heart disease and residuals of a myocardial infarction. There was no mention of residuals of varicose veins or any aspect of military service. In June 1978, the RO denied service connection for heart disease because the disorder manifested after service. This evidence demonstrates that a arteriosclerotic was not shown in service and was not diagnosed until 1978, over 10 years after the Veteran was discharged from service. Service connection based upon the one-year presumption noted in 38 C.F.R. §3.307 and 3.309 is not warranted as the coronary artery In November 1978, a clinician at a military clinic noted that the Veteran was experiencing bilateral varicosities and wore support hose. In November 1982, the Veteran was hospitalized in a private facility for chest pain. Testing showed no evidence of another infarction and a physician diagnosed unstable angina. In August 1988, the Veteran was hospitalized for suspected progression of ischemic heart disease and congestive heart failure. He underwent cardiac catheterization that revealed total occlusion of the dominant left circumflex coronary artery and moderate left ventricular dysfunction. The attending physician noted that the coronary artery disease was stable. In March 1990, a cardiologist at a naval medical center also found no evidence of congestive heart failure and cleared the Veteran for an unrelated surgical procedure. Again, there was no mention of varicose veins as a related disorder. In January 1990, the RO declined to reopen a claim for service connection for heart disease because there was no new and material evidence regarding any relationship of the heart disorder to active duty service. Records of private medical care in 1996 showed that the Veteran experienced increased pain in the lower legs. The Veteran underwent a study of blood flow in the peripheral arteries of the lower legs that was substantially normal. In September 1996, the RO granted an increased rating of 10 percent for varicose veins. In March and April 2004, a private cardiologist performed additional diagnostic testing of the Veteran's heart and peripheral arteries. The testing identified occluded arterial vessels in the heart and legs that required angioplasty and the placement of stents. In April 2004, a VA physician accurately summarized the history of coronary artery disease and varicose veins and examined the Veteran. He observed scatters small varicose veins of the lower extremities that he evaluated as "really of no significance." The Veteran died in September 2007 from immediate and underlying causes listed on the death certificate as noted above. The RO received the appellant's timely claim for DIC in November 2007. The appellant noted that the death certificate "clearly identifies the cause of death consistent with his service connected disabilities." In a statement in January 2010, the appellant further claimed that the Veteran died from service-connected varicose veins. In September 2012, the Board remanded the claim for further procedural and evidentiary development. The Board instructed that the RO provided the appellant with adequate notice and an opportunity to identify or submit additional records of the Veteran's end of life medical care. The Board also directed the RO to obtain a medical opinion addressing whether the service-connected varicose veins disability, singly or with some other condition, was the immediate or an underlying cause of death. As noted above, the AMC provided an adequate notice with the invitation to provide additional evidence, and obtained a medical record review and opinion. In December 2012, a VA physician noted a review of the file including the service and available private treatment records and the death certificate including the primary cause of death from cardiac arrest with contributing causes of coronary artery disease and ventricular dysfunction. The physician noted that he reviewed medical literature that was silent for varicose veins of the lower extremities or all other service-connected disabilities as potential causes of cardiac arrest. He explained the physiology of coronary artery disease and the mechanism of arterial blockage leading to sudden cardiac arrest and death and that the Veteran was not service-connected for any of these conditions. He noted, "...it must be assumed that his sudden cardiac death was the result of non-service connected coronary artery disease or one of other predisposing non-service-connected noncardiac conditions." In a May 2013 brief, the Veteran's representative suggested that the December 2012 medical report was inadequate because the physician only "assumed" rather than stating unequivocally that the death was caused by a heart disorder. The Board does not agree. The physician was tasked with providing an opinion only whether any of the Veteran's service-connected disabilities including varicose veins was a primary or contributing cause of death. He provided an answer to that question on the basis of a review of the record and his medical experience and research. This opinion is not controverted by any other competent evidence of record. Although not tasked with providing his own determination of the cause of death, he did provide an explanation that supported the determinations by the Veteran's attending physician as noted on the death certificate. The Board concludes that entitlement to DIC under the provisions of 38 U.S.C.A. § 1310 is not warranted because the Veteran's service-connected disabilities were not primary or contributory causes of death. The Board places greatest probative weight on the findings listed on the death certificate by the attending physician and the conclusions of the VA physician in December 2012. Detailed records of care at a private hospital were not authorized for recovery. Nevertheless the findings on the death certificate represent the opinion of the attending physicians who provided end of life care. There is no competent medical evidence to the contrary. The VA physician in 2012 performed an additional review and concluded that none of the Veteran's service-connected disabilities including varicose veins were primary or contributory causes of death. The opinion is consistent with the observations of a VA physician in 2004 who found the varicose veins to be of no significance at the same time as the Veteran was undergoing angioplasty and arterial stents. The Board considered the appellant's lay assertion that the service-connected varicose veins disability or other service-connected disabilities were causes of the death. Under certain circumstances, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, as to the specific issue in this case, whether any of the Veteran's service-connected disabilities caused his death, falls outside the realm of common knowledge of a lay person as this requires medical training and consideration of clinical tests and \studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In this case, the appellant does have the training and expertise to persuasively establish the required elements of her claim solely on the basis of her own lay assertions. In evaluating a claim, VA is tasked with considering all issues raised by the claimant or reasonably raised by the record. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Here, the appellant has not contended that that any of the causes of death listed on the death certificate should be service-connected on a direct or presumptive basis or secondary to any already service-connected disabilities including varicose veins. After a review, the Board finds that these theories of entitlement neither are nor raised by the record. Service treatment records are silent for any symptoms or diagnoses for coronary artery or related forms of heart disease. The first manifestations of heart disease were many years after service. The Veteran's claims for service connection were denied on two occasions and post-service treatment records for heart disease are silent for any suggestion of a secondary relationship to the service-connected disabilities. As the Veteran did not serve in Vietnam, there is no suggestion of a presumption of service-connection because of exposure to herbicide. The Board does not imply a determination on the issues of direct, presumptive, or secondary service connection for the listed causes of death, but rather finds only that these issues are not reasonably raised by the claimant or the record. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Dependency and Indemnity Compensation Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1310 is not warranted because a service-connected disability was not a primary or contributing cause of death. Where a veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service connected. A "deceased veteran" is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason was not in receipt of but would have been entitled to receive compensation (but for the receipt of retired or retirement pay), at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran's separation from service. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The total rating may be schedular or based on unemployability. Id. In this case, at the time of his death, the Veteran was not in receipt of or entitled to received compensation for service-connected disabilities rated as totally disabling. Therefore, DIC under the provisions of 38 U.S.C.A. § 1318 is not warranted as a matter of law. ORDER Service connection for the cause of the Veteran's death is denied. Dependency and indemnity compensation benefits are denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs