Citation Nr: 1337781	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  12-00 013	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office Insurance Center in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1941 to September 1945.  He died in 2007.  The appellant is his surviving spouse.

This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

1. The Veteran died from Alzheimer's disease, due to loss of weight, due to anorexia.

2. At death, the Veteran was service connected for a perforated ear drum.  He received a noncompensable evaluation.

3. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death.


CONCLUSION OF LAW

A service-connected disability did not cause, or contribute substantially or materially, to the Veteran's death.  38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A.");regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, 38 U.S.C.A. § 5103(a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom. Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009). 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 at 352-353.

A February 2010 VCAA letter did not identify the Veteran's sole, service-connected disability of a perforated ear drum which was evaluated as non-compensably disabling.  This minor error cannot be said to be prejudicial to the appellant. The letter advised the appellant what information and evidence was needed to substantiate her claim for the cause of the Veteran's death. The letter specifically advised her that she must either show that a contributory cause of the Veteran's death was due to injury or disease that began during service or that an already service-connected disability(ies) caused or contributed to his death. This letter also informed the appellant about what information and evidence must be submitted by her, including enough information for the RO to request records from any identified sources. The letter also explained what evidence and information was required to substantiate a claim based on a condition not yet service connected. The Board finds that any deficiency in the notice to the appellant is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006).  

Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, any questions as to the appropriate effective date to be assigned are rendered moot, and no further notice is needed.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The RO has complied with the duty to assist.  The appellant did not respond to the VCAA notice.  The appellant submitted private treatment records.  The Veteran's service treatment records were already associated with the claims file.  See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). 

The record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence she should submit to substantiate her claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits.




Entitlement to Service Connection for Cause of Death

To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially, or materially, to the cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). 

Service connection may be established for the cause of a Veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110, 1112 (setting forth criteria for establishing service connection). 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 considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service connected disability casually shared in producing death; rather, a causal connection must be shown.

Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 

Service-connected diseases or injuries involving active processes affecting vital organs should 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.

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)(3),(4) (2012); Lathan v. Brown, 7 Vet. App. 359 (1995).

The Veteran's death certificate indicates the immediate cause of death was Alzheimer's disease.  A significant condition contributing to his death was loss of weight due to anorexia. There is no mention either in the death certificate or in any medical evidence of record indicating that the Veteran's service connected, non-compensable perforated ear drum was noted by any medical care professional as of any severity or bearing on his death.  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

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. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau, 492 F. 3d at 1372 (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Taking into account all relevant evidence, the Board finds that service connection is not warranted for the cause of the Veteran's death. No medical evidence has been presented which indicates that the Veteran's service-connected disability, or any disability related to service, were the principal cause of death, or contributed substantially or materially to death. 





ORDER

Service connection for the cause of the Veteran's death is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs