Citation Nr: 1334945 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 02-08 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney WITNESSES AT HEARING ON APPEAL Appellant and D.T. Appellant and R.T ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. He died in February 2001. The appellant is the Veteran's widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2003, the appellant and D.T. testified before a Veterans Law Judge (VLJ) during a hearing at the RO. A transcript of that hearing is of record. In March 2004, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC for due process considerations and to attempt to obtain records of treatment of the Veteran, obtain a VA medical opinion, and issue a statement of the case addressing the issues of entitlement to death pension benefits and whether there was clear and unmistakable error (CUE) in a prior rating decision for accrued benefits purposes. In August 2007, the appellant and R.T. testified before the undersigned VLJ during a hearing at the RO. A transcript of that hearing is also of record. In a decision dated November 2007, the Board denied a claim for entitlement to service connection for the cause of the Veteran's death, and dismissed the withdrawn claims of entitlement to death pension and whether there was CUE in a prior rating decision denying service connection for arteriosclerotic heart disease for the purpose of accrued benefits. Thereafter, the appellant appealed the Board's November 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated February 2009, the Court remanded the issue of entitlement to service connection for the cause of the Veteran's death to the Board pursuant to the terms of a Joint Motion for Remand (JMR). In July 2009, the Board again remanded the issue to the RO via the AMC for further development, as order by the JMR. In July 2013, the appellant's attorney requested another Board videoconference hearing, but in an October 2013 letter withdrew this request. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died in February 2001; a Certificate of Death reflects that the immediate cause of death was atherosclerotic heart disease due to or as a consequence of chronic obstructive pulmonary disease. 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. There is no nexus between the cause of the Veteran's death and his active service. 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. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dependency and indemnity compensation (DIC) may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), (b) and (d). Additionally, certain chronic diseases, including cardiovascular disease, may be presumed to have incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1) (West 2002); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a claimant is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Of record is a Certificate of Death indicating that the Veteran died in February 2001. This document lists the immediate cause of death as atherosclerotic heart disease due to or as a consequence of chronic obstructive pulmonary disease. At the time of the Veteran's death, service connection had not been established for any disability. Therefore, the Board must determine if service connection is warranted for a disability that resulted in his death; in this case, atherosclerotic heart disease or chronic obstructive pulmonary disease. Service medical records show that, in November 1943, the Veteran reported symptoms of dizziness, lightheadedness, and occasional pain around his heart. Examination found persistent tachycardia with a soft systolic murmur heard along the left sternal border. Three days later he was admitted for observation of paroxysmal tachycardia with pre-cordial pain. He was transferred from the dispensary after three days observation with a finding of "[n]o disease. Hospitalized because of complaint of palpitation, lightheadedness, slight headache. No pathology demonstrated." Clinical notes from that admission report the Veteran's symptoms of tachycardia of approximately one year duration and that the veteran had chest pain on very slight exertion. This note also states that the Veteran's father was unable to care for himself and the Veteran had provided for his father's personal care and desired to return to continue this care and obtain employment to support his father. Physical examination at this time found the Veteran's lungs to be clear with no rales, his pulse regular, and no venous engorgement. His heart was found to be not enlarged, with no murmur, regular rhythm, and it was noted that it "sounds good." Physical examination was marked as negative, across from which was listed "[n]o disease found," and the Veteran was returned to duty. By the time of his discharge from the dispensary he had no tachycardia, providing evidence against this claim. During the August 2007 hearing, the appellant's representative at that time directed attention to "11A" in a discharge from service medical report, as evidence that the service medical staff had determined that the Veteran had heart disease during service. The Board has carefully reviewed this report. In a December 1946 separation report, under a section entitled "STATEMENT AND MEDICAL HISTORY OF EXAMINEE," is a block numbered "11" (which directs the person filling out the form to "[l]ist all significant diseases, wounds, and injuries"). In this block is typed: "A. Heart trouble, Sta.Hosp. Rucker - 1944. 4 days." However, under a section entitled "RECORD OF PHYSICAL EXAMINATION" are findings of normal lungs, normal chest x-ray, and under block 24, for cardiovascular system, "no abnormality found." Such findings provide evidence against this claim. Contrary to the appellant's representative's characterization of the discharge from service report of physical examination, that document does not reflect that the service medical personnel determined that the Veteran had chronic heart disease during service. Rather, that report reflects only that the Veteran had been treated for complaints of heart trouble and found, upon examination, to have no abnormality, providing evidence against this claim. Post-service, the first report of heart symptoms is found in December 1968 clinical notes from a private physician, "G.S.," M.D. These notes report symptoms of chest pain; that is, discomfort in the left area and nervousness, with 2 such episodes in the past 6 months. Also reported by the Veteran at that time was that he suffered from tiredness, lack of energy, and frequently suspected that he was going to die. Dr. S. diagnosed the Veteran with anxiety reaction with multiple premature ventricular contractions. The prognosis was stated as "excellent physically", providing more evidence against this claim. This report provides evidence against this claim, as it indicates no heart problem many years after service and clearly no indication of a heart disorder that had existed since World War II, more than 50 years ago. Of record is also an April 1972 VA report of medical examination conducted in conjunction with a claim by the Veteran for VA benefits for a heart condition. That report indicates that the Veteran had normal sinus rhythm, normal heart sounds, no murmur or rub, no enlarged neck veins or dependent edema, and that peripheral pulses were intact in all extremities. This report again provides evidence against this claim, as it indicates no heart problem many years after service and clearly nothing to indicate a continuous heart disorder since World War II. The next report of heart symptoms, and, indeed, the first record of diagnosed heart disease, is found in September 1980 records from St. John's Regional Health Center. At that time the Veteran was diagnosed with arteriosclerotic coronary artery disease with left ventricular function. He underwent a two vessel aorto-coronary bypass. These notes indicate that the Veteran had experienced chest pain for only the previous 6 to 8 weeks, decades after service, providing more evidence against his claim. A November 1986 consultation report from St. John's Regional Health Center, signed by "T.M.," M.D., indicates that the Veteran suffered from coronary artery disease, with a listed etiology of "atherosclerotic," and from chronic bronchial asthma. No reference in the etiology is made to the Veteran's service. A VA Medical Certificate, from May 1990, contains the first medical evidence that the Veteran suffered from chronic obstructive pulmonary disease; such diagnosis of chronic obstructive pulmonary disease was made with reference to a long history of smoking. This document also provided an impression of coronary artery disease, with history of myocardial infarction dating to 1985. In April 1993, the Veteran was again treated at St. John's Regional Health Center. Notes from "P.C.," M.D. report an impression of coronary artery disease, unstable angina, symptoms consistent with congestive heart failure, chronic obstructive pulmonary disease, and questionable history of hypertension, and noted that the Veteran continued nicotine abuse. In May 1993, the Veteran was admitted to St. John's Regional Health Center with chest pains. At discharge from this institution he was diagnosed with status post inferior wall myocardial infarction, chronic obstructive pulmonary disease, and decreased ejection fraction to approximately 50 percent. A social history obtained at that time indicates that the Veteran "stopped smoking only a short time ago and has abused tobacco for quite some time." Following additional admissions for cardiac and chronic obstructive pulmonary disease symptoms, in February 2001 the Veteran was discharged after a two day admission at St. John's Regional Health Center with a diagnosis from Dr. Y. of end stage cardiomyopathy and end stage chronic obstructive pulmonary disease. He died later that month. The Board notes that associated with the claims file are medical records of treatment conducted from June 2002 to May 2004 by P.C., M.D.; the same physician referred to above who treated the Veteran in 1993. These records do not make any reference to military service. More importantly, these records are for treatment of a patient with the same first and last name of the Veteran, but four years younger than the Veteran would have been had he survived past September 2001. Additionally, in more than one instance, these records show a different middle initial than that of the Veteran. As these records clearly do not refer to treatment of the Veteran who is the subject of this appeal, the Board has not considered the content of these records in adjudicating this appeal. No medical treatment record makes mention of a relationship between the Veteran's service and his chronic obstructive pulmonary disease or coronary heart disease, or even refers to the existence of symptoms or diagnoses of these conditions during service or for decades after separation from service. Such medical records only provide evidence against this claim, indicating a disorder that began years after service with no connection to service. However, in an August 1996 letter, Dr. Y. stated that the Veteran "has been diagnosed with severe COPD [chronic obstructive pulmonary disease] and I feel that he (sic) condition has not improved since he was released from service in 1943. Please reconsider his application for medical benefits." Dr. Y. did not indicate that this condition was caused by service. In December 2004, a VA medical opinion was rendered by a cardiologist regarding the onset of the diseases that caused the Veteran's death. This physician indicated that she had reviewed the Veteran's claims file. Her opinion includes numerous references to evidence in the claims file. She opined that the Veteran's cardiac symptoms during four days while in service were not in any way related to coronary artery disease. As a rationale, she explained that this occurred in 1943 and his documented coronary artery disease did not manifest until 1980. She explained that the time span of 37 years from his report of symptoms during service until diagnosis in 1980, without any other medical attention for the remainder of his active duty, makes it highly unlikely that he had significant artery disease in 1943 and was able to continue for 37 years without having subsequent problem. She said it was much more likely that the Veteran, whom, she remarked, the record indicates wanted to get out of the service because he wanted to go home and take care of his father, was suffering from anxiety attacks at that time. This physician found it particularly important that no abnormalities were found in the four days during service that the Veteran was under observation for these reported symptoms. This physician concluded that it was highly unlikely that the Veteran's demise, which was related to arteriosclerotic heart disease and chronic obstructive pulmonary disease, was related to the disorder that he had during a four day period in 1943. Thus, the record contains no medical opinion or medical evidence favorable to finding a nexus between the Veteran's reported chest pains during service and his post-service coronary artery disease. The only medical evidence addressing any such link is this opinion against such a finding, supplied by the VA cardiologist in December 2004. This is highly probative evidence against the appellant's claim. As to the Veteran's chronic obstructive pulmonary disease, the Board has considered the 1996 letter from Dr. Y. regarding the etiology of this disease. As both Dr. Y. and the December 2004 examiner addressed the Veteran's chronic obstructive pulmonary disease, the Board must weigh this evidence in order to adjudicate this appeal. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board affords little probative weight to Dr. Y.'s August 1996 letter. This letter is neither detailed nor thorough; it merely states a conclusion without any explanation as to how Dr. Y. arrived at that conclusion. Dr. Y does not state why he believed the Veteran's chronic obstructive pulmonary disease had not improved since 1943 (or, for that matter, why Dr. Y. believes the Veteran had COPD in 1943). For Dr. Y. to be correct, several medical providers who noted the Veteran to be "excellent physically" prior to serivce, before COPD was found, would have to have been mistaken. Further, given that the evidence does not show that the Veteran had chronic obstructive pulmonary disease during service or until forty-seven years after 1943, there is no basis given for Dr. Y.'s opinion. Nor is there any evidence that Dr. Y. reviewed any medical records from the Veteran's service or any time contemporaneous to his release from active service. Particularly informative is that although the claims file contains numerous clinical notes of treatment of the Veteran by Dr. Y. in the 1990's and 2000's, these records make no mention of the Veteran's condition in 1943 or for many decades thereafter. Dr. Y's August 1996 letter is based entirely on the Veteran's report of his medical condition at separation from service. The Board is not required to accept the Veteran's uncorroborated account of his medical history, but must assess the credibility and weight of the evidence provided by the Veteran. Swann v. Brown, 5 Vet.App. 229, 233 (1993). The Board finds that the Veteran's report of his condition, to the extent that he reports suffering heart disease and/or chronic obstructive pulmonary disease during service, or shortly thereafter, is not credible. As explained above, and supported by the December 2004 VA medical opinion, the evidence contemporaneous to service shows that the Veteran did not suffer from chronic obstructive pulmonary disease in 1943, or anytime contemporaneous to 1943. Where the Veteran's report of events are found to be inaccurate, the Board need not afford any probative value to a medical opinion based solely on those reports. See Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (citing Reonal v. Brown, 5 Vet. App. 458, 460 (1993) in that the Board may reject a medical opinion based on facts provided by the veteran previously found to be inaccurate). Because the Veteran's account of his medical history is inaccurate, Dr. Y.'s opinion, necessarily based only on that history, is of only negligible, if any, probative value. The Board affords the December 2004 VA opinion considerable probative weight. Unlike Dr. Y., the physician who provided the December 2004 opinion indicated that she had reviewed the records of treatment of the Veteran during service as well as records of treatment since service. Also unlike Dr. Y, she provided a clear and detailed rationale for her opinion. Furthermore, her opinion is supported by clinical evidence reflecting that chronic obstructive pulmonary disease was not diagnosed until many years after service. In this case, the medical treatment records show that the Veteran's arteriosclerotic heart disease did not have its onset during service and did not manifest until many decades after separation from service. Likewise, the weight of the medical evidence of record shows the same as to his chronic obstructive pulmonary disease. Because the preponderance of the evidence demonstrates that the Veteran's death was neither principally caused by, nor contributed to by, any injury or disease etiologically related to his service, the appellant's claim for service connection for the cause of the Veterans' death must be denied. 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 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to notify and assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for DIC benefits, which includes a claim of service connection for the cause of a veteran's death, section 5103(a) 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the agency of original jurisdiction (AOJ). Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead 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) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of letters sent to the appellant on May 5, 2004 and August 24, 2006, that fully addressed all four notice elements. The May 2004 letter informed the appellant of the evidence needed to substantiate a claim for benefits based demonstration that the Veteran's death had been caused by a service-connected disability. In that regard, this letter told the appellant that such benefits could be paid if the evidence showed that the Veteran died from a service-related injury or disease. This letter also informed the appellant of her and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her possession to the AOJ. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. The August 2006 letter provided the appellant notice as to assignment of disability ratings and effective dates. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the AOJ also readjudicated the case by way of subsequent SSOCs, the most recent of which was issued in July 2011, after the notice was provided. Notice provided to the appellant necessarily did not include a statement of the conditions for which the Veteran was service-connected nor the evidence needed to substantiate her claim based on a condition for which the Veteran was service-connected. As the Veteran had no service-connected disability at the time of his death, notice as to these particular provisions mentioned in Hupp are not applicable to this claim. In any event, the Board finds no prejudice to the appellant in the adjudication of this claim at this time. Although the RO did not spell out each element of a service connection claim, the notice provided in the May 2004 letter was broad enough to include all elements of a service connection claim. The appellant could not be prejudiced by lack of more specific notice, because, informing her that benefits could be available on a showing that the Veteran died from a service related injury or disease, would result in the appellant submitting evidence and information that necessarily included any evidence of the disease or injury related to service, i.e. evidence of the disease or injury during service and evidence that the disease or injury had its onset or was caused by service. Thus, the Board finds that the notice provided to the appellant satisfied the requirements of the VCAA, including those requirements as explained in Hupp. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as any errors in notice did not affect the essential fairness of the adjudication. VA has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service medical records and pertinent treatment records and providing an examination or obtaining a medical opinion 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 without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, including records of treatment at the Mt. Vernon Missouri VA Medical Center. Either obtained by the RO or submitted by the appellant, are private treatment records from St. John's Regional Medical Center, "M.Y.," M.D., "P.C.," M.D.; "G.C.," M.D.; and "G.S.," M.D. Reports signed by "J.L.," D.O., associated with the St. John's Regional Medical Center, are also of record. The appellant requested VA assistance in obtaining records from Dr. "D." and the "D." Clinic; Wesley Medical Center; "D.S.," Via Christi Regional Medical Center; Nevada Regional Medical Center; Freeman West; and "A.J.," M.D. The appellant was unable to provide information as to Dr. D. and the D. clinic, other than the names. "D.S." was listed at the same office as "G.C.," M.D., records of which have been associated with the claims file. In a communication received dated in June 2004, indicated that she had no address for the "D" Clinic and Dr. "D." Replies indicating that there were no records of the Veteran were received from St. Joseph Hospital, Wesley Medical Center, Newman Memorial Hospital, Freeman Hospital, Nevada Regional Medical Center, and Via Christi Hospital. By letter dated in July 2005, VA informed the appellant that VA had received negative response as to records requests to Freeman Hospital, St. Joseph, Newman Memorial, Wesley Medical Center, and the Nevada Regional Medical Center. She was also told that Stormont Vail Hospital Health Center required a signed release from her and a copy of the death certificate. No further communication was received from the appellant as to the Stormont Vail Hospital Health Center. In the June 2006 supplemental statement of the case, the appellant was informed of the evidence of record and that all other attempts to secure records were fruitless. In that SSOC, the RO listed as evidence, reports from Dr. J.L. and Dr. G.L. followed by "include duplicates of the St. John's Hospital records." While the claims file contains a report from Dr. J.L. there is no report from Dr. G.L. However, in her VA Form 21-4142, (release of information forms), the address listed for both Dr. J.L. and Dr. G.L. were identical, and thus the Board assumes that any treatment records requested and supplied would have included existing records from each physician. Also, in an undated letter, the appellant asserted that the Veteran was treated at VA facilities in Wichita, Kansas in 1961 or 1962. In an August 2006 letter, the appellant stated that she did not understand why records were not obtainable from the VA Hospital in Wichita, Kansas. VA treatment records from 1961 and/or 1962 are not associated with the claims file. However, during the August 2007 hearing, the appellant stated that she had written to all of the hospitals at which she believes the Veteran received treatment, and that she telephoned those that did not reply. Hearing transcript at page 9. She was told by these institutions that any records of the Veteran were no longer in existence. Id. The appellant also testified that she had written to the VA in Wichita and told that no records could be located. Id. The testimony from the appellant was clear and unmistakable: the medical records from these institutions from more than 50 years ago were not available and any additional effort to obtain these records would not be successful. The above facts have led to a major delay in the adjudication of this case. In the February 2009 JMR, the parties to the JMR determined that VA had a duty to request the Veteran's records from the VA Hospital (VAH) in Wichita, Kansas, in 1961-62, more than 50 years ago, or, alternatively, to inform the appellant that such records are unobtainable, notwithstanding the fact that at hearing before the Board the appellant herself indicated that these records were not available. In light of the JMR and the Order of the Court, in its July 2009 remand, the Board instructed the AOJ to contact the Wichita VAH and request such records, and in the event additional records from the Wichita VAH were unavailable, to send the appellant a letter informing her of the unavailability of such records. While the Board requested that the AOJ obtain records from 1960-61, the AOJ requested records from the Wichita VAH for the periods of 1960-61, and 1960-62. In responses dated in July 2011 and January 2013, the AOJ was notified that no such records from the Wichita facility existed. In a May 2013 memorandum, the AOJ made a formal finding of the unavailability of such treatment records, and in a May 2013 letter informed the appellant that it was unable to obtain such clinical records regarding treatment at the Wichita VA facility for the period of January 1, 1961, to December 31, 1962. From the above, it is clear that VA has fulfilled its duty to assist the appellant. A large number of the requests to obtain records have resulted in replies that the institutions had no record of the Veteran. The Board must look at the full facts of this case in order to determine whether another remand of this case is warranted, leading to further delays in the full adjudication of this case. In this regard, the VA apologizes to the Appellant for the delays that have already occurred in this case. In this case, the Board remanded to obtain records from more than 50 years ago that the Appellant has clearly testified, under oath, are not available. Furthermore, all received treatment records have only provided additional evidence against the appellant's claim because they have shown heart disease and chronic obstructive pulmonary disease only many years after separation from service and have provided no evidence of such during service. Even these records, if there were obtained, would, at very best, show treatment for this condition in the 1960's. The Veteran served on active duty from March 1943 to January 1946. Therefore, at best, it would indicate a condition that existed 14 to 16 years after service. In this regard, all facts of this case must be considered. The Veteran underwent an evaluation in December 1968, several years after the alleged treatment occurred in the early 1960's. The December 1968 clinical notes from a private physician, "G.S.," M.D., as noted above report the Veteran's symptoms of chest pain; that is, discomfort in the left area and nervousness, with 2 such episodes in the past 6 months. Also reported by the Veteran at that time was that he suffered from tiredness, lack of energy, and frequently suspected that he was going to die. Dr. S. diagnosed the Veteran with anxiety reaction with multiple premature ventricular contractions. The prognosis was stated as "excellent physically", providing more evidence against this claim that the problems cited in the early 1960's was COPD. In any event, even if it was, it was years after service. Even if the Board discounts the Veteran's long history of smoking, continued efforts to obtain records show no indication of bearing fruit regarding the critical issue in this case: was the disability at issue at least as likely as not related to service. The Board notes that VA's duty to assist is not a license to go on a "fishing expedition." See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Significant evidence in the case weighs against this claim. Pursuant to the Board's July 2009 remand instructions, the AOJ readjudicated the appellant's claim and issued an SSOC to the appellant in July 2011. The Board notes that, following the January 2013 response regarding the lack of any 1961-1962 treatment records from the VA facility in Wichita, and the May 2013 letter informing the appellant of such, the AOJ did not readjudicate the appellant's claim and issue another SSOC. However, the lack of such subsequent SSOC in this case is not prejudicial to the appellant. In the July 2011 SSOC, the AOJ specifically noted that the unavailability of treatment records Wichita VA Medical Center from 1960 to 1961. The additional fact of the unavailability of treatment records from the same facility dated in 1962 is simply cumulative and redundant evidence of the absence of treatment records in the early 1960s that, if they existed, might be pertinent to the claim, and a fact that the Appellant clearly understands as she was the one who told us many years ago. Thus, the Board finds that remand in this case simply for the AOJ to consider this cumulative absence of evidence, which has no possibility of helping to substantiate the appellant's claim, and issue yet another SSOC, is not warranted and would needlessly delay final adjudication of this appeal. As indicated above, the appellant had opportunity to set forth her contentions during the hearing before the undersigned VLJ. A medical opinion was obtained in December 2004. This report was adequate because it was provided by an examiner with appropriate expertise who reviewed the claims file and, along with the other evidence of record, provided sufficient information to decide the appeal and a sound basis for a decision on the appellant's claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, in light of the above, the Board finds that there has been compliance with the terms of the February 2009 JMR, as well as substantial compliance with the Board's March 2004 and July 2009 remand instructions by the AOJ. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board finds no basis to remand this case to the RO that will serve any constructive purpose in light of the evidence of record, which overwhelmingly provides evidence against this claim. Significantly, neither the appellant nor her attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, 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). Also, in Bryant v. Shinseki, the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the August 2007 Board personal hearing, the VLJ fully explained the issue on appeal. The appellant was assisted at the hearing by an accredited representative from the Missouri Veterans Commission. The VLJ and the representative asked questions of the appellant and the Veteran's son regarding the nature of the Veteran's death and illness prior to death, the relationship of any disabilities that resulted in death to the Veteran's period of service, the Veteran's health problems in his years since service, and the existence of any medical treatment records that might help to substantiate the appellant's claim well before the Bryant decision was issued in order to determine if there was some basis to grant this claim. Neither the appellant nor her attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs