Citation Nr: 1454875 Decision Date: 12/12/14 Archive Date: 12/17/14 DOCKET NO. 12-27 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and J. S. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to October 1970. He died in August 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2014, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran died in August 2011; the cause of the Veteran's death was heat hyperpyrexia with rheumatic heart disease contributing to death but not resulting in the underlying cause. 2. The Veteran was not service connected for any disability at the time of his death. 3. The Veteran did not serve in the Republic of Vietnam or along the Korean DMZ on or after April 1, 1968. 4. There is no evidence of record indicating that an exposure, disease, or other incident in service caused or contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1310, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of a veteran's death, VCAA notice must also include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his 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, 352 (2007). In this case, it is unclear to the Board whether the VCAA notice sent to the appellant in March 2012 was fully compliant with Hupp because a complete copy of the notice that was sent is not associated with the appellant's paper or electronic claims files. Instead, a "VCAA notice response" form was received from the appellant in April 2012 and is associated with the file; she indicated that she had no other information or evidence to give VA to support her claim and asked VA to decide the claim as soon as possible. Similarly, the May 2012 rating decision and an October 2012 statement of the case (SOC) listed evidence of record that was considered or created in deciding the claim. The rating decision and SOC each indicated that the VCAA letter regarding the cause of death claim was sent to the appellant in March 2012. In other words, the appellant's response indicates that she received a VCAA letter; however, the exact content of that letter is unknown. Nevertheless even if the March 2012 letter did not take the form prescribed in Hupp, the defect may be cured by (1) actual knowledge on the part of the claimant; (2) when a reasonable person could be expected to understand from the notice what was needed; or (3) when a benefit could not have been awarded as a matter of law. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the appellant has shown actual knowledge of how to substantiate her claim. Written statements and oral testimony submitted by the appellant and her representative reflect knowledge that the Veteran was not service connected for any disabilities during his lifetime. She has asserted that the Veteran flew to Cam Ranh Bay, Vietnam from Japan with P-3s, thus asserting that the Veteran was exposed to Agent Orange. In addition, in her July 2012 notice of disagreement, she contended that the condition of "rheumatic heart," which was listed as a condition that contributed to death, was caused by ischemic heart disease, reflecting her knowledge that ischemic heart disease is by regulation presumed to be related to Agent Orange exposure. In summary, she has contended that the cause of the Veteran's death is attributable to his active military service, particularly to the claimed military service in the Republic of Vietnam and presumed exposure to herbicides. Accordingly, any failure to provide Hupp compliant notice does not prevent adjudication by the Board. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board also finds that the March 2012 notice letter satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In VCAA letters regarding DIC or cause of death claims, the RO notifies appellants that VA is responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Again, the appellant's April 2012 VCAA response indicating that she had no other information or evidence to give VA to support her claim reflects her knowledge that she had an opportunity to identify or submit additional evidence. Moreover, during the August 2014 hearing, she was advised that she could request additional time to submit additional evidence to support her claim if necessary. Accordingly, the Board finds that VA has complied with its duty to notify and assist the appellant in the development of her claim. VA has obtained service treatment and personnel records, post-service VA treatment records, the certificate of death, and written statements from the appellant. She was provided with the opportunity to give testimony before the Board. Additionally, VA's duty to assist a DIC claimant includes obtaining a medical opinion whenever such an opinion is necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2014); Delarosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (noting that Section 5103A(a), and not (d), applies to DIC claims, and requires that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit"). VA must make reasonable efforts to provide a medical opinion unless there is no reasonable possibility that such assistance would aid in substantiating the claim. Wood v. Peake, 520 F.3d 1344, 1348 (Fed. Cir. 2008) (citation omitted). VA did not obtain a medical opinion with respect to the cause of death claim, but the Board finds that an opinion was not necessary as the competent evidence of record does not indicate or suggest a causal connection between the Veteran's service and his cause of death. Contrary to the appellant's assertions, the evidence reflects that the Veteran died from heat hyperpyrexia (heat stroke) with heart rheumatic (rheumatic heart disease) contributing to the immediate cause of death. Neither of these conditions was noted in service, neither has been found to be associated with exposure to herbicides, and neither was evident until many decades after the Veteran's separation from service. Also, ischemic heart disease was not mentioned on the certificate of death. As a result, a VA medical opinion regarding the cause of the Veteran's death is not warranted. In summary, the appellant has received all essential notice and has had a meaningful opportunity to participate in the development of her claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board concludes that VA's duties to the appellant have been fulfilled with respect to the cause of death issue. II. Analysis The Veteran died in August 2011. The certificate of death indicates that he was found at his residence with an actual or presumed time of death at 2:50 p.m. and lists the immediate cause of death as heat hyperpyrexia (heat stroke). "Heart rheumatic" [rheumatic heart disease] was listed as a significant condition contributing to death but not resulting in the underlying cause. The Board notes that rheumatic fever is defined as "a febrile disease occurring as a delayed sequela of infections with group A beta-hemolytic streptococci and characterized by multiple focal inflammatory lesions of connective tissue, especially of the heart (rheumatic heart disease), blood vessels, and joints (polyarthritis)." In addition, "[o]nset is usually signaled by sudden fever and joint pain, followed by manifestations of heart and pericardial disease...." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 688 (30th ed. 2003) [hereinafter DORLAND'S]. The appellant seeks service connection for the cause of the Veteran's death. She contends that the Veteran had ischemic heart disease due to exposure to herbicides during service in the Republic of Vietnam and died from a heart attack. Specifically, she asserts that he went to Vietnam in 1969 or 1970 and flew P-3s out of Cam Ranh Bay. In August 2012 correspondence, she stated that the Veteran's certificate of death "does show that he died of heat [and] heart problems." She added that in "his military records it has to show he was in Vietnam for I received letters from him, but no longer have them. He was with a P-3 unit." In her July 2013 substantive appeal, the appellant stated that "even though [the Veteran] was not service connected for exposure to Agent Orange, he should have been. He served in Vietnam. He has the medals as evidenced on his DD214. He was on heart medicine at the time of his passing." During the August 2014 hearing, the appellant affirmed that she was claiming that a heart disease significantly contributed to the cause of the Veteran's death. She testified that the Veteran was stationed in Japan and flew as a crewman with a squadron of P-3s to Vietnam and that he was never on a ship during his Navy service except for open houses. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The cause of a veteran's death will be considered to be 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). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Pertinent to the claimed Vietnam service, a veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases, including ischemic heart disease, associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a veteran may establish exposure to herbicides on a factual basis, or exposure may be presumed if the veteran served in Korea with certain units along the DMZ from April 1, 1968, to August 31, 1971. 38 C.F.R. § 3.307. 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 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). Ischemic heart disease (IHD), including but not limited to acute, subacute, and old myocardial infarction and coronary artery disease (CAD), is deemed to be associated with exposure to herbicides. See 38 C.F.R. § 3.309(e). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. at Note 3. Neither heat hyperpyrexia nor rheumatic heart disease is included in the list of diseases presumed to be associated with exposure to herbicides. Ischemic heart disease is defined as any group of acute or chronic cardiac disabilities resulting from insufficient supply of oxygenated blood to the heart; it may be due to increased oxygen demand, to diminished blood oxygen transport, or most commonly to reduction in coronary blood flow because of arterial narrowing or obstruction such as that caused by atherosclerosis. It may manifest as angina pectoris, myocardial infarction, ventricular fibrillation, or sudden cardiac death. See DORLAND'S, supra at 536. The Veteran's service treatment records are silent for complaints, diagnosis, or treatment for heat-related illness, rheumatic fever, or heart disease, including any hypertension. An August 1966 enlistment medical history report reflects that the Veteran denied currently or ever having rheumatic fever or any heart trouble. On separation examination in September 1970, clinical evaluation of the heart and vascular system was reported as normal. During his lifetime, the Veteran had filed claims for entitlement to service connection for hearing loss, tinnitus, posttraumatic stress disorder (PTSD), and respiratory cancer in June 2006. On his application for VA compensation benefits, he reported serving in the Republic of Vietnam from November 4, 1969 to October 2, 1970. In a December 2006 rating decision, the RO denied each claim. Among the reasons and bases for denying the claims, the RO detailed that a review of the Veteran's service treatment and personnel records failed to show in-country Vietnam service while on active duty. The RO notified the Veteran and his representative of the decision and enclosed a copy of the rating decision in a separate letter the same month. The Veteran did not express disagreement or appeal the decision. Prior to issuing the December 2006 rating decision, the RO obtained treatment records identified by the Veteran from the Houston VA Medical Center (VAMC). The records did not reveal complaints, diagnosis, or treatment for heat-related illness, rheumatic heart disease, or ischemic heart disease. A February 2006 oncology note indicates that the Veteran disclosed that he had smoked a pack of cigarettes per day for 40 years and was still smoking occasionally. The records also documented a history of hypertension and peripheral arterial disease. Upon receipt of the appellant's September 2011 claim, the RO again attempted to verify the claimed service in Vietnam. An April 2012 response from the National Personnel Records Center (NPRC) indicated that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. A review of his service personnel records and service treatment records reflects that he was located at Naval Air Stations (NAS) Noris and Moffet Field in California, and NAS Whidbey Island in Oak Harbor, Washington during the time that he had previously claimed he was in Vietnam. The Veteran's DD Form 214 reflects that he received the Vietnam Campaign Medal and Vietnam Service Medal; however, these medals do not confirm service in Vietnam. Consequently, his records do not document service in Vietnam or along the Korean DMZ on or after April 1, 1968 until he separated from service. Given the conflicting information about the Veteran's whereabouts, the Board finds that the service department records are more believable than the assertions made in the context of claims for monetary benefits. As a result, exposure to an herbicide agent is not presumed. In any event, the certificate of death reflects that the Veteran's cause of death was heat hyperpyrexia with heart rheumatic or rheumatic heart disease listed as a significant condition contributing to death but not resulting in the underlying cause. As noted above, neither heat stroke nor rheumatic heart disease or rheumatic fever has been associated with exposure to herbicides. Similarly, rheumatic heart disease is not an ischemic heart disease as the former is a delayed sequela of strep infection while the latter is an insufficient supply of oxygenated blood to the heart due to causes other than infection. Regardless of whether a claimed disability is recognized under 38 C.F.R. § 3.309(e), a claimant is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). On the issue of direct service connection, the Board reiterates that service treatment records are silent regarding any type of heat-related illness, rheumatic fever or rheumatic heart disease, or any other type of heart disease, including hypertension. The certificate of death and post-service VA treatment records indicate that the cause of the Veteran's death, heat hyperpyrexia, was an acute medical event as reflected by the fact that he was found in the mid-afternoon on the date of his death in August 2011. Nothing among the evidence of record, including the appellant's lay statements, suggests that the fatal heat hyperpyrexia was related in any way to an event, disease, or injury during the Veteran's military service. Service connection on the basis of heat hyperpyrexia is not warranted. Similarly, service connection for the cause of the Veteran's death due to rheumatic heart disease is not warranted because rheumatic fever or rheumatic heart disease was not present in service and was not shown among the post-service VA treatment records. In other words, rheumatic heart problem was first documented upon the Veteran's death in August 2011, more than 40 years after separation from service and the remaining evidence of record does not support service connection for the cause of the Veteran's death on the basis of a continuity of symptomatology. In conclusion, the Board finds there is no basis upon which to conclude that the cause of the Veteran's death is related to his military service, including the reported, but unconfirmed, exposure to herbicides in the Republic of Vietnam. Therefore, service connection the cause of the Veteran's death is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death, that doctrine is not helpful to the appellant. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs