Citation Nr: 0300952 Decision Date: 01/16/03 Archive Date: 01/28/03 DOCKET NO. 02-02 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to benefits under Section 156 of Public Law 97- 377, the Restored Entitlement Program for Survivors. ATTORNEY FOR THE BOARD Stanley Grabia, Counsel INTRODUCTION The veteran had active service from July 1951 to May 1971. The veteran died in February 1997. The appellant is the veteran's widow. This appeal arises from a December 2000 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which determined that the service-connected disability which caused the veteran's death did not have its onset prior to August 13, 1981. The records in this case were later transferred to the RO in North Little Rock, Arkansas. FINDINGS OF FACT 1. VA has notified the appellant of the evidence needed to substantiate her claim, and has obtained and fully developed all evidence necessary for the equitable disposition of the claim. 2. The veteran did not die on active duty prior to August 13, 1981. 3. The record establishes that the onset of the disability which caused the veteran's death was long after August 13, 1981. CONCLUSION OF LAW The criteria for entitlement to benefits under the provisions of Section 156 of Public Law 97-377, the Restored Entitlement Program for Survivors, are not met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.812 (2002); Sec. 156, Pub. L. No. 97-377, 96 Stat. 1920 (1982). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board observes that VA has a duty to assist in the development of facts pertinent to the appellant's claim. On November 9, 2000, the Veterans Claims Assistance Act of 2000, 114 Stat. 2096 (2000) (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002), went into effect. VA has promulgated revised regulations to implement these changes in the law. 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2002). In this case, VA's duties have been fulfilled to the extent possible. VA must notify the appellant of evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was notified of the information necessary to substantiate her claim and which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf by means of letters in February 2001 and October 2001; the discussion in the December 2000 rating decision; by the memorandum decision in January 2001; and the February 2002 statement of the case. Therefore, VA has no outstanding duty to inform her that any additional information or evidence is needed. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West Supp. 2002); 38 C.F.R. § 3.159(c), (d). The duty to assist also includes obtaining records of relevant treatment at VA facilities, and any other relevant records held by any Federal department or agency identified by the appellant. If VA is unable to obtain records identified by the appellant, VA must notify her of the identity of the records that were not obtained, explain the efforts taken to obtain the records, and describe any further action to be taken. The Board finds that VA has met its duty to assist the appellant in the development of her claim under the VCAA. There does not appear to be any outstanding medical records that are relevant to this appeal. Service, and private medical treatment records have been associated with the claims file. Thus, under the circumstances in this case, VA has satisfied its duties to notify and assist the appellant. As there is no indication that there are additional records that should or could be obtained, and it appears that all pertinent evidence is on file, no further development is indicated. Background. The veteran died at home on February [redacted], 1997. The cause of death is listed on the death certificate as probable pneumonia due to metastatic non small cell lung carcinoma due to cigarette smoking. The interval between pneumonia and death was listed as days, while the lung cancer was shown to be of 2 months duration. Chronic obstructive pulmonary disease was listed an another significant condition contributing to death but not related to the cause of death. Service records reflect that the veteran served in Vietnam during his military service. Lung carcinoma is included in the disabilities presumed to be secondary to exposure to Agent Orange under 38 C.F.R. § 3.309(e), as such service connection was established. By rating action in February 1998 service connection for the cause of the veteran's death was established. Subsequently in November 2000 the appellant filed a claim for entitlement to benefits under Section 156 of Public Law 97- 377, the Restored Entitlement Program for Survivors (also known as the REPS program). The appellant contends, in essence, that the veteran's lung cancer was the direct result of his exposure to Agent Orange while serving in Vietnam. She asserts that since the veteran served in Vietnam prior to August 13, 1981, and was exposed to Agent Orange during that time, the onset of the veteran's residual disability and cause of death must have arisen prior to the eligibility date. By rating action in December 2000 entitlement was denied. In making that determination, the RO noted that although the veteran's lung cancer was attributed to exposure to Agent Orange in service, the actual onset of the fatal cancer was not until 1996. At the time of the veteran's death in February 1997, the attending physician reported that the onset of the lung carcinoma was only two months prior to death. Criteria. The Restored Entitlement Program for Survivors (REPS), enacted by Congress in 1982, provides for the payment of benefits to certain surviving spouses and children of former members of the Armed Forces. REPS benefits replace certain Social Security benefits that were either reduced or terminated by the Omnibus Budget Act of 1981. See generally 38 C.F.R. § 3.812. In ascertaining a claimant's eligibility for entitlement to REPS benefits, the provisions of 38 C.F.R. § 3.812 require that a determination first be made that the person on whose earnings record the claim is based either died on active duty prior to August 13, 1981, or died as a result of a service-connected disability which was incurred in or aggravated prior to August 13, 1981. Since the veteran did not die on active duty prior to August 13, 1981, the only remaining basis for the appellant's eligibility for REPS benefits would be if the veteran's lung cancer was determined to have been incurred in or aggravated prior to August 13, 1981. The evidence of record does not support a finding that the veteran's lung cancer had its onset prior to August 13, 1981. The death certificate reflects that the attending physician reported that the time interval between the onset of the veteran's lung carcinoma and his death in February 1997 was 2 months. The appellant's primary contention is that the veteran's lung cancer was directly related to his exposure to Agent Orange while serving in Vietnam, as well as many other toxins. She has submitted a letter received in May 2001, as well as a VA Form 9, Appeal to the Board, dated in February 2002 in support of this contention. However, her contentions alone cannot rebut a medical opinion as to the date of onset for the veteran's lung carcinoma which places the onset of the lung cancer in 1996. Similarly, as a lay person, the appellant is not competent to address issues of medical causation which require expert opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). There is simply no medical evidence in the file to support the appellant's contentions as to the date of onset of the fatal lung cancer. Since the veteran did not die prior to August 13, 1981 and since the date of onset of the service-connected lung carcinoma was after this date, the criteria for entitlement to REPS benefits under Section 156 of Public Law 97-377 are not met. Under these circumstances, the appellant is not eligible for benefits under the provisions Section 156 of Public Law 97-377. ORDER Entitlement to benefits under Section 156 of Public Law 97- 377, the Restored Entitlement Program for Survivors, is denied. Gary L. Gick Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.