Citation Nr: 1802431 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-10 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active service with the United States Army from October 1959 to February 1962. The Veteran died in March 2016, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 decision of a Department of Veterans Affairs (VA), Regional Office (RO), which denied the above claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran died in March 2016. The death certificate reflects that the immediate cause of death was multi-organ failure due to acute respiratory distress syndrome, due to septic shock, due to acute renal failure. 2. At the time of death, the Veteran was service-connected for lumbar spondylosis, rated 20 percent disabling, limitation of flexion of the right and left knees, each rated as 10 percent disabling, and migraine headaches and bilateral hearing loss, each rated noncompensable, with a combined rating of 40 percent. 3. Neither multi-organ failure, nor acute respiratory distress syndrome, nor septic shock, nor acute renal failure was manifest during service or is otherwise related to service; acute renal failure did not manifest in the first post-service year. 4. The Veteran's cause of death was unrelated to service or a service-connected disability. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C. §§ 1110, 1131, 1116, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). A notice for a DIC case 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 v. Nicholson, 21 Vet. App 342, 352-53 (2007). The RO satisfied the notice requirements in a January 2017 letter to the appellant. The letter informed her of the duties she had and VA's duties for obtaining evidence. The letter also told her that to substantiate the claim there must be medical evidence showing that a service connected condition caused or contributed to the Veteran's death, that is, that he died from a service-connected injury or disease. The letter also informed her that the Veteran was service-connected for disabilities of the back, knees, migraine headaches and bilateral hearing loss at the time of his death. The appellant responded to this letter later in January 2017 indicating that she had submitted all evidence and information related to the claim. The claim was readjudicated thereafter in the February 2017 statement of the case (SOC). No further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA's duty to assist has been satisfied. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). Service treatment records, personnel records, VA treatment records, and private treatment records have been associated with the claims file. 38 U.S.C.A. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The Board notes that a VA medical opinion has not been obtained in this case. However, as will be explained further below, there is no competent evidence that the cause of the Veteran's death is attributable to his period of service, and in the absence of competent evidence of an event, injury or onset of manifestations of disorders that were the cause of the Veteran's death or suggestion that any disorder was attributable to any aspect of service, obtaining a medical opinion is not required because there is no reasonable possibility that it would aid in substantiating the claim. II. Service Connection for Cause of Death To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). To establish service connection for a disability, the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To the extent that the acute renal failure may be considered a cardiovascular-renal disease, this is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 Fed. C1r. 2013). Analysis The Veteran died in March 2016. The cause of death was multi-organ failure due to or as a consequence of acute respiratory distress syndrome, due to or as a consequence of septic shock, due to or as a consequence of acute renal failure. At the time of death, the Veteran was service-connected for lumbar spondylosis, rated 20 percent disabling, limitation of flexion of the right and left knees, each rated as 10 percent disabling, and migraine headaches and bilateral hearing loss, each rated noncompensable, with a combined rating of 40 percent. The appellant contends that the Veteran's cause of death was related to his service-connected disabilities. However, it is uncontroverted that neither multi-organ failure, nor acute respiratory distress syndrome, nor septic shock, nor renal failure was shown in service or for many years following service. Service treatment records do not suggest that these conditions were noted or complained of in any way. His separation examination dated in December 1961 reflects normal clinical evaluation of all relevant body systems, with only arm tattoos and cystectomy scars of the left inguinal, right upper thigh and middle lumbar were noted. Appellant does not make any specific arguments or present any competent evidence that a service-connected disability caused the Veteran's death, or substantially or materially contributed to his death. Rather, she submitted a February 2017 private physician's statement as to her declining health. This report does not comment on the cause of the Veteran's death. There is simply no support for the appellant's assertion that the conditions that caused the Veteran's death manifested in service or until many years after service, or that his death is otherwise related to service. The post-service medical evidence showing a denial of respiratory distress and renal failure in 2013, followed by a notation of acute respiratory and renal failure secondary to acute myocardial infarction first diagnosed in June 2014, is compelling evidence against finding that the Veteran had chronic symptoms of during service. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board next finds that the weight of the above evidence demonstrates that multi-organ failure, acute respiratory distress syndrome, septic shock and renal failure have not been continuous since separation from service and no "chronic" disease represented by these conditions manifested to a compensable degree within one year of service. Moreover, the weight of the evidence is against finding a relationship between that multi-organ failure, acute respiratory distress syndrome, septic shock or renal failure and service. The Board notes the September 2015 private physician's opinion that the Veteran is 100% disabled due to his service-connected disabilities and that his cardiovascular, 'metabolics', musculoskeletal and psychiatric disorders are more probable than not secondary to service. However, this opinion does not address the cause of the Veteran's death, and as such is not relevant to this appeal. It was rendered in connection with a claim for increased ratings and service connection claims made prior to the Veteran's death. It is of no probative weight in this matter. The Board thus finds that the preponderance of the evidence is against a finding that the cause of the Veteran's death is related to his active service. The Board is certainly sympathetic to the appellant's loss and her claim that the cause of the Veteran's death was service-related. Unfortunately, however, the appellant, as a lay person, is not shown to have any medical education, training, or experience so as to be competent to render such a medical conclusion, which clearly requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a) (2014). Again, the Board emphasizes that she has not advanced anything more than a general assertion that his death is related to service. Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. There is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs