Citation Nr: 1337918 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-17 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to June 1946. He died in October 2004. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In her April 2008 Substantive Appeal, the appellant requested a hearing before a Veterans Law Judge. The claim was subsequently certified to the Board in November 2010. As the record did not reflect that such a hearing had been scheduled, the Board remanded the appellant's claim in July 2012 for a Board hearing. The hearing was scheduled for February 20, 2013. However, in a February 2013 written statement, the appellant and her representative requested that the Board hearing be rescheduled. Accordingly, the RO rescheduled the Board hearing for April 22, 2013. However, the appellant did not appear for the Board hearing, and in an April 2013 informal hearing presentation, the appellant's representative indicated that the appellant had been unable to attend the hearing for health reasons. As neither the appellant nor her representative have requested to reschedule the Board hearing, the request for a hearing is considered withdrawn. In June 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in October 2004; the cause of death as listed on the death certificate was respiratory failure due to advanced carcinoma of the lung with diabetes mellitus and arteriosclerotic heart disease contributing conditions that did not result in the underlying cause of death. 2. At the time of death, service connection was in effect for anxiety reaction. 3. The most probative evidence of record does not establish that it is at least as likely as not that the cause of the Veteran's death was a result of his military service, or proximately due to or chronically aggravated by service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Stegall Considerations The case was remanded by the Board in July 2012 and June 2013. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the July 2012 remand was to allow a hearing to be scheduled, which was scheduled for February 2013 and April 2013; the appellant could not attend. The June 2013 remand was issued so that corrective VCAA notice could be sent and a VA opinion obtained. A letter complying with the Board's orders was sent in September 2013, and VA opinions were obtained in August 2013 and September 2013. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the June 2013 remand and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) addressed VA's 38 C.F.R. § 5103(a) notice obligations in the context of a claim for DIC benefits under 38 U.S.C.A. § 1310. The Court held that, because the RO's adjudication of a DIC claim hinges first on whether a veteran was service-connected for any condition during his or her lifetime, the 38 U.S.C.A. § 5103(a) notice in such a claim must 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, 21 Vet. App. at 352-53. The Court also held that when an appellant's DIC application and accompanying evidence expressly raises a specific issue regarding, or the evidence submitted in connection with it relates to, a particular element of a claim, VA is required to provide notice that informs the appellant of how to substantiate the assertion advanced and takes into account the evidence submitted in connection with the application. Id. at 353 . VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant was provided with a complete VCAA notification letter in September 2013, after the initial unfavorable AOJ decision issued in March 2006. This notice informed the appellant of the evidence necessary to establish service connection for a disability as well as the cause of the Veteran's death, of how VA would assist her in developing the claim, and her and VA's obligations in providing such evidence for consideration. This letter also included information on substantiation of effective dates and a list of the Veteran's service-connected disabilities during his lifetime. The Board notes that disability ratings do not apply to cause of death cases. Even though the September 2013 letter was not timely, the Board finds that no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that, as a matter of law, providing the appellant with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A statement of the case (SOC) and supplemental SOC (SSOC) constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice. See id. In the present case, after the September 2013 letter, the appellant's claim was readjudicated in an SSOC, thereby rectifying any issue of timeliness. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the claim and obtaining a VA opinion. The Veteran's service treatment records, VA medical records, private treatment records, and August 2013 and September 2013 VA opinions were obtained. The appellant discussed in her arguments a history and physical examination and hospital pathology report, operation report, and consult reports from Dr. BE and Dr. VD and a September 2004 discharge summary from Pana Community Hospital. In addition, it is indicated in treatment notes that the Veteran received treatment at Gottlieb Hospital and Prairie Rose Health Care Center. The appellant specifically advised that the Veteran was not treated at Gottlieb Hospital; however, otherwise she did not respond to VA's request that she authorize release of these records to VA. She indicated in July 2013 that she would submit additional evidence, but none has been forthcoming. The Board observes that the law provides that, while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim. As the Court stated in Wood v. Derwinski, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996). While the referenced records would be helpful to the Board in adjudicating the claim, VA is not obligated to make further efforts to elicit from the appellant the information necessary to obtain them, particularly in light of her assertion that she would be supplying additional evidence directly to VA. Therefore, the Board finds that VA has met its duty to assist in obtaining outstanding records. With regard to the VA opinions, the Board notes that once VA undertakes to provide a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's relevant medical history, and considered evidence relating the Veteran's anxiety reaction and post-surgical treatment. There is nothing to suggest that either the examiner's opinion is not sufficiently based on the facts of the case, or that arbitrary conclusions were reached. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claim without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). 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(c). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran died in October 2004; the cause of death as listed on the death certificate was respiratory failure due to advanced carcinoma of the lung with diabetes mellitus and arteriosclerotic heart disease contributing conditions that did not result in the underlying cause of death. At the time of death, service connection was in effect for anxiety reaction. The appellant contends that the Veteran's anxiety reaction prevented him from being taken off a ventilator and being properly treated for his lung cancer and other underlying disabilities. Therefore, she argues that his anxiety reaction contributed to his death. Service treatment records are negative for any complaints or findings relative to a respiratory disability, diabetes mellitus, or arteriosclerotic heart disease. Post service clinical records note the Veteran's blood pressure was 150/80 on an employment related examination in October 1964. His blood pressure was 160/90 on VA hospitalization in September 1965. A diagnosis of essential hypertension was reported in a report of a December 1981 private hospitalization. It was reported that pulmonary function testing showed mild obstructive changes and a moderate degree of pulmonary emphysema. A diagnosis of chronic obstructive pulmonary disease was reported in an October 1999 treatment report. A November 2003 VA progress note indicated the Veteran's laboratory test results revealed an abnormal glucose level which indicated glucose intolerance. The Veteran underwent a right lower lobectomy in April 2004 and was placed on a ventilator after developing respiratory problems. A July 2004 discharge summary reflects that there were attempts to wean the Veteran from the ventilator to a CPAP machine, but they failed, generally due to the Veteran developing significant anxiety after a short period of time off the ventilator. An August 2005 letter from Dr. DE states that the Veteran's extreme anxiety was a significant contributor to the inability to ultimately wean him from the ventilator for any period of time, which resulted in a prolonged stay in a rehab facility and complications from being on the ventilator. However, Dr. DE indicated that he was not entirely certain whether these factors contributed to the Veteran's death. Dr. MBP also supplied a letter in August 2005 that stated that one of the factors making the Veteran dependent on a ventilator was his chronic underlying anxiety disorder. In a September 2005 letter, Dr. DM concurred that the anxiety disorder was a contributing factor to the inability to wean the Veteran from the ventilator. A VA examiner opined in August 2013 that it is less likely as not that there is a causal nexus between the Veteran's psychiatric disability and the onset or course of his cancer. The examiner stated that there is no known evidence to support a relationship between anxiety disorder and the onset or course of a cancer disability. In addition, he stated that there is no reason to believe that the Veteran's inability to be weaned off a ventilator hastened his death and that remaining on the ventilator most likely prolonged his life. Another VA examiner offered an opinion on direct service connection in September 2013. The examiner opined that there was no disease or injury in the claims file that could be an etiology for the Veteran's lung cancer. Thus, the examiner found that the Veteran's lung cancer was less likely as not incurred in or caused by an in-service injury, event, or illness. This examiner also opined that the cause of death was less likely than not proximately due to or the result of the service-connected disability. The rationale for this opinion was that there is no evidence in the claims file that the Veteran's lung cancer, diabetes mellitus, respiratory failure, and ischemic heart disease resulted from an injury or illness in service. Thus, the rationale does not address the question of secondary service connection, but only further supports the negative opinion as to direct service connection. Based on the above, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. There is no evidence relating the cause of death, or other significant conditions which contributed to his death, to his military service. Diabetes mellitus, hypertension, arteriosclerotic heart disease, and respiratory disability, to include lung cancer, were initially demonstrated years after service, and have not been shown to be etiologically related to service. Indeed, the September 2013 VA examiner's opinion stated that there is no evidence in the claims file that the Veteran's lung cancer, diabetes mellitus, respiratory failure, and ischemic heart disease resulted from an injury or illness in service. While it is evident that the Veteran's anxiety resulted in his inability to be weaned off a ventilator, the appellant has not submitted any evidence that demonstrates that the Veteran remaining on the ventilator negatively impacted the treatment of his cancer or his recovery from that disease or otherwise contributed to his death. The July 2004 discharge summary indicates that even though the Veteran was on a ventilator, he had had a very stable course without significant problems or complications and that, with ongoing rehab and nutritional recovery the Veteran could have improved to the point of being weanable. However, that is the last medical record relating directly to the Veteran's treatment prior to his death as the appellant has not provided VA with the treatment notes from the months remaining until his death in October 2004. The Board acknowledges the appellant's written statements in support of her claim. Such statements can be competent evidence of symptoms that are capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the appellant is not competent to determine whether there is a connection between the Veteran's lung cancer and anxiety reaction or that his service-connected disability was a contributing factor in his death. These are complex medical questions which require medical training, which the appellant has not been shown to possess. The determination of the specific etiology of the Veteran's lung cancer and cause of death requires medical evidence. As discussed, the medical evidence lends no support to her contention that the fact that the Veteran was not weanable from the ventilator hastened or caused his death. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for cause of the Veteran's death. Therefore, the claim must be denied. ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs