Citation Nr: 18156707 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 14-04 365 DATE: December 11, 2018 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate shows that she died in December 2010 and lists the immediate cause of death as respiratory failure and pneumonia with the other significant condition of methicillin-resistant staphylococcus aureus abscess (MRSA). 2. At the time of the Veteran’s death, she did not have any service-connected disabilities. 3. The preponderance of the evidence does not demonstrate that the cause of the Veteran’s death was etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 2002 to November 2006. The Appellant, the Veteran’s mother, is appealing on behalf of the Veteran’s child, T.J.K. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Pension Center at the Milwaukee, Wisconsin Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge at an April 2014 videoconference hearing. In June 2015 and October 2017, the Board remanded the issue on appeal for additional development. As the actions specified in the remands have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Notably, the Board highlights that following the RO’s failure to comply with the June 2015 Board remand’s instructions to obtain private treatment records from Prince William Hospital and Georgetown University Hospital as well as any reports of an autopsy, the Appellant was afforded another opportunity to retrieve those records. The October 2017 Board remand requested that the RO perform the necessary steps to obtain those private treatment records. In order to effectuate that request, the RO asked the Appellant to provide a new medical release authorization form (VA Form 21-4142) as the forms of record had expired. The Appellant did not respond to that request for updated forms. Given the decision by the Appellant not to participate in any further development of her claim, the Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). Here, the Board finds that, as the Appellant has rejected VA’s attempts to generate the necessary information to assist with substantiating her claim, there is no duty to seek further development. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Appellant. Therefore, the Appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. 1. Entitlement to service connection for cause of the Veteran's death The Appellant asserts that the Veteran’s death was caused by an in-service infection. First, the Appellant asserts that following the Veteran’s caesarean section (C-section), the Veteran developed a significant infection which required treatment during service. The Appellant contends that the Veteran’s in-service infection contributed to her death. Second, the Appellant contends that the Veteran had cysts during service. In October 2010, the Appellant explained that the Veteran had cysts on her arm and leg and underwent outpatient surgery at a private facility related to those cysts. A month after that surgery, the Veteran was hospitalized for pneumonia and developed a MRSA infection. The Appellant generally asserts that her in-service cysts were related to post-service cysts, which required surgery and eventually led to her developing an infection which contributed to her death. Finally, the Appellant generally contends that the Veteran contracted an infection due to her service in other countries and her assistance with the clean-up efforts following Hurricane Katrina. The Appellant did not specify what the Veteran may have been exposed to during service. See April 2014 Board hearing transcript. The cause of the veteran’s death will be considered to be due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must be 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; or 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). The Veteran’s death certificate indicates that she died in December 2010. The immediate cause of death was listed as respiratory failure and pneumonia and the other significant condition was MRSA. At the time of the Veteran’s death, she did not have any service-connected disabilities. The Veteran’s service treatment records (STRs) document that in February 2006, she underwent a C-section. Following surgery, the Veteran had a seroma and an infection of the wound. She was treated with packing and the wound healed without complications. According to an October 2006 Report of Medical Assessment and associated report of medical history, the Veteran was discharged with a healed C-section. The Veteran was diagnosed with seasonal allergic rhinitis, but no other problems were noted. As noted above, efforts to obtain additional private treatment records were unsuccessful. There are no post-service private treatment records in the record. The Appellant did not provide a medical opinion in support of her claim. However, without the benefit of retrieving any additional treatment records, the RO obtained a July 2016 VA opinion. Based on the available evidence, the July 2016 VA examiner opined that the Veteran had no medical disorder during her lifetime that was at least as likely as not incurred in or aggravated by her active duty service. The July 2016 VA examiner noted that the Veteran had a C-section during service, had developed a seroma, and then the wound became infected. That infection was found to be a common occurrence in postoperative wounds. The July 2016 VA examiner explained that the wound was treated with packing and healed without problems. At discharge, the Veteran’s records showed no evidence of an infection and for over a year after discharge. Based on the available evidence, the July 2016 VA examiner determined that it was less likely as not that the Veteran’s infection during service was related to her cause of death. In this case, the only evidence supporting the Appellant’s claim are her own lay assertions. While a lay person is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay witness competent to render opinions regarding the cause of death in a medically complex case nor need the Board give any probative weight to bald assertions by a lay witness, such as the Appellant, regarding that subject. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Appellant, who lacks medical training, is not competent to opine on the cause of the Veteran’s death. The questions of medical causation are complex in this appeal and require medical training in order to provide a competent opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As discussed above, there is no competent medical evidence supporting the Appellant’s claim. The preponderance of the evidence is against finding that the Veteran’s cause of death was related to her active duty service. Accordingly, the benefit-of-the-doubt rule does not apply, and the Appellant’s claim for service connection for cause of the Veteran’s death must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw