Citation Nr: 0418902 Decision Date: 07/15/04 Archive Date: 07/27/04 DOCKET NO. 01-02 546A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether the veteran's widow timely appealed a denial of service connection for the cause of the veteran's death. 2. Whether the veteran's widow timely appealed a denial of eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. 3. Entitlement to service connection for the cause of the veteran's death due to Agent Orange exposure. 4. Whether the veteran's widow is eligible for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. 5. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1151 based on treatment provided by VA. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff INTRODUCTION The veteran had active service from March 1953 until March 1955, from July 1957 to September 1960, and from March 1965 to December 1979. He had active service in the Republic of Vietnam during the Vietnam Era. He died on June [redacted], 1986. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (BVA or Board) from April 1995, and April 2002 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada, which denied the benefits sought on appeal. A March 2001 Statement of the Case determination held that the veteran had not timely appealed a prior RO denial of entitlement to service connection for the cause of the veteran's death, and the denial of eligibility for Chapter 35 educational assistance benefits. The issue of entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1151 based on treatment provided by VA is the subject of a Remand below. FINDINGS OF FACT 1. An April 1995 rating decision denied entitlement to service connection for the cause of the veteran's death, and basic eligibility for Chapter 35 educational assistance benefits. 2. The veteran's widow provided notice of disagreement with the April 1995 rating decision which denied entitlement to service connection for the cause of the veteran's death, and basic eligibility for Chapter 35 educational assistance benefits, in October 1995, within one year of notice of the determinations issued on April 17, 1995. 3. A statement signed by the veteran's widow, dated May 3, 1996, but date-stamped as initially received by the RO on April 9, 1996, is accepted as a timely substantive appeal as to the denial of entitlement to service connection for the cause of the veteran's death, and basic eligibility for Chapter 35 educational assistance benefits. 4. The veteran died on June [redacted], 1986 due to cardiorespiratory arrest, as a consequence of septic shock, due to severe lukopenia (neutropenia) secondary to chemotherapy for squamous cell carcinoma of the nasopharynx, with bilateral pneumonia noted as a significant condition contributing to death. 5. At the time of the veteran's death, service connection was established for a herniated nucleus pulposus with sciatica, rated 20 percent disabling; hearing loss with otitis media, rated 10 percent disabling; conversion reaction, rated 10 percent disabling; tinnitus, rated noncompensable; and a scar of the left breast, rated noncompensable, with a combined service-connected rating of 40 percent. 6. The veteran had active service in the Republic of Vietnam during the Vietnam Era. 7. The competent clinical evidence of record does not demonstrate that the fatal cardiorespiratory arrest, as a consequence of septic shock, due to severe lukopenia (neutropenia) secondary to chemotherapy for squamous cell carcinoma of the nasopharynx, with bilateral pneumonia, initially demonstrated years after service, is etiologically related to service, or that the veteran had a disability due to service which contributed substantially or materially to, the veteran's death. CONCLUSIONS OF LAW 1. The veteran's widow timely perfected an appeal of the April 1995 RO denial of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.102, 20.200, 20.202, 20.302, 20.305 (2003). 2. The veteran's widow timely perfected an appeal of the April 1995 RO denial of basic eligibility for Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.102, 20.200, 20.202, 20.302, 20.305 (2003). 3. The cause of the veteran's death, cardiorespiratory arrest, as a consequence of septic shock, due to severe lukopenia (neutropenia) secondary to chemotherapy for squamous cell carcinoma of the nasopharynx, with bilateral pneumonia, was not incurred in or aggravated by active service, and a service-connected disability did not contribute substantially or materially to the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2003). 4. The criteria for basic eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C.A. § 3501, 3510 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA). This new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duties to notify and to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and her representative, if represented, of any information and evidence needed to substantiate and complete a claim. See 38 U.S.C.A. §§ 5102 and 5103 (West. 2002). In this regard, VA will inform the appellant of which information and evidence, if any, that she is to provide and which information and evidence, if any, VA will attempt to obtain on her behalf. VA will also request that the appellant provide any evidence in her possession that pertains to the claim. Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A. With regard to the issues of whether the veteran's widow timely completed an appeal as to the denial of service connection for the cause of the veteran's death, and the denial of basic eligibility for Chapter 35 educational benefits, the Board notes that, in light of the favorable determination contained herein relative to those issues, further development with regard to the duties to notify and assist would serve no useful purpose. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991); see also Sabonis v. Brown, 6 Vet App 426 (1994). With regard to the issue of entitlement to basic eligibility for Chapter 35 educational benefits, the Board notes that, under 38 U.S.C. § 5103(a), the VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because the undisputed facts render the claimant ineligible for the claimed benefit. Further, under 38 U.S.C. § 5103A, VA is not required to assist a claimant in developing evidence to substantiate a claim where no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 05-2004. In the present case, as will be discussed below, with regard to the issue of entitlement to basic eligibility for Chapter 35 educational benefits, the facts are not in dispute, and the law is dispositive of the issue. Notice With regard to the issue of entitlement to service connection for the cause of the veteran's death, the Board notes that a VA letter issued in November 2003 apprised the appellant of the information and evidence necessary to substantiate her claim, which information and evidence, if any, that she is to provide, and which information and evidence, if any, VA will attempt to obtain on her behalf. She was also requested to provide any evidence in her possession that pertains to the claim. As such, the Board finds that the correspondence satisfied VA's duty to notify the veteran of the information and evidence necessary to substantiate the claim for service connection for the cause of death, which information and evidence, if any, that she is to provide, and which information and evidence, if any, VA will attempt to obtain on her behalf, as well as requested that the appellant provide any evidence in her possession that pertains to the claim as required by Quartuccio v. Principi, 16 Vet. App. 183 (2002) and 38 C.F.R. § 3.159. It is also noted that a recent case of the United States Court of Appeals for Veterans Claims (Court) held that compliance with 38 U.S.C.A. § 5103 required that the VCAA notice requirement be accomplished prior to an initial unfavorable determination by the agency of original jurisdiction. See Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24, 2004) (Pelegrini II). However, in the present case, the appellant's claim for service connection for the cause of the veteran's death was filed and initially denied prior to the enactment of the VCAA. Nevertheless, the Court in Pelegrini II noted that such requirement did not render a rating decision promulgated prior to providing the veteran full VCAA notice void ab initio, which in turn would nullify the notice of disagreement and substantive appeal filed by the veteran. In other words, Pelegrini II specifically noted that there was no requirement that the entire rating process be reinitiated from the very beginning. Rather, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. Because the VCAA notice in this case was not provided to the veteran prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not specify how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that a notice error of this kind may be non-prejudicial to a claimant. There is no basis for concluding that harmful error occurs simply because a claimant receives VCAA notice after an initial adverse adjudication. In reviewing AOJ determinations on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's decision. As provided by 38 U.S.C. § 7104(a), all questions in a matter which under 38 U.S.C. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-AOJ initial adjudication constitutes harmless error, especially since an AOJ determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104. Further, a claimant is not compelled under 38 U.S.C. § 5108 to proffer new and material evidence simply because an AOJ decision is appealed to the Board. Rather, it is only after a decision of either the AOJ or the Board becomes final that a claimant has to surmount the reopening hurdle. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the veteran in November 2003 was not given prior to the first AOJ adjudication of the claim, the notice was provided by the AOJ prior to the transfer and certification of her case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Therefore, not withstanding Pelegrini II, to decide the appeal would not be prejudicial error to her. The Court in Pelegrini II also held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above, the Board has found that the appellant was provided every opportunity to identify and submit evidence in support of her claim. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any deficiency as to the timing of VCAA notice to the appellant is harmless error. Duty to Assist With regard to the duty to assist, the record contains the veteran's service medical records, as well as reports of VA and private post service treatment and examination. The veteran's widow has been afforded the opportunity for a personal hearing on appeal. The Board has carefully reviewed the veteran's widow's statements and concludes that she has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's widow's claim for service connection for the cause of the veteran's death. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran's widow in developing the facts pertinent to her claim for service connection for the cause of the veteran's death. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. I. Timeliness of Appeal - Service Connection for the Cause of the Veteran's Death and Eligibility for Chapter 35 benefits Applicable Law An appeal to the Board is initiated by filing a timely notice of disagreement, and is perfected by filing a timely substantive appeal. 38 C.F.R. §§ 20.200, 20.202 (2003). The substantive appeal may be set forth on a VA Form 9 ("Appeal to the Board of Veterans' Appeals"), or a predecessor form, or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to the errors of fact or law made by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.202 (2003). To be considered timely, the substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, or within any extended time limits prescribed pursuant to a timely-filed request for extension of time. 38 C.F.R. §§ 20.302(b), 20.303 (2003). The Court of Appeals for Veterans Claims (Court) has held that, if the claimant fails to file a substantive appeal in a timely manner, "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). VA regulations also provide that, absent evidence of a postmark, it is presumed that any written document required to be "filed within a specified period of time," which includes a notice of disagreement or substantive appeal, was mailed five days prior to the actual receipt of the document by the RO, excluding Saturdays, Sundays, and legal holidays. 38 C.F.R. §§ 20.305(a), 20.306 (2003). Factual Background A review of the record reveals that a claimant other than the veteran's widow originally filed an application for DIC benefits in July 1986. That same month, the claim for service connection for the cause of the veteran's death was denied. Notice of the determination was issued on July 31, 1986 only to the claimant other than the veteran's widow. In August 1986 the veteran's widow filed an application for burial benefits. In September 1986, the veteran's widow filed an application for DIC benefits. In September 1986, the RO notified the veteran's widow that she had been awarded burial expenses of the veteran based on nonservice-connected death. By letter issued on November 24, 1986, the veteran's widow was notified that death benefits had been denied because the evidence did not establish that the veteran's death was due to a service-connected disability. The letter also advised the veteran's widow of her appellate right. No appeal was taken within one year following notice of the determination. As such, that determination is final. 38 U.S.C.A. § 7105. In November 1989, the veteran's widow sought to reopen her claim for service connection for the cause of the veteran's death as due to Agent Orange exposure. Due to pending legislation, adjudicatory action on the claim was deferred, pending enactment of pending legislation, until April 1995. At that time, the RO considered whether the regulations on Agent Orange exposure allowed for a grant of service connection for the cause of the veteran's death. The claim for service connection for the cause of the veteran's death due to Agent Orange exposure, as well as the issue of entitlement to basic eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35, were denied at that time. Notice of the determinations was issued on April 17, 1995. The veteran's widow was also advised of her appellate rights. Notice of disagreement with the determinations (submitted on a VA Form 1-9) was received by the RO in October 1995. A statement of the case was issued on March 20, 1996. The issues of entitlement to service connection for the cause of the veteran's death, as well as entitlement to basic eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35, were readjudicated in a rating decision dated March 19, 1996. Notice of the determinations, as well as the veteran's widow's appellate rights, were issued by the RO in a letter dated March 27, 1996. In a statement dated May 3, 1996, but date-stamped as received by the RO on April 9, 1996, and again on May 9, 1996, the veteran's widow expressed continued disagreement with the RO denials. A supplemental statement of the case was issued in May 1996. In August 1996 and October 1996, the veteran's widow requested that her claim be reevaluated. In January 1997, she formally applied for death pension benefits. A March 1997 hand-written interoffice memo at the RO indicated that the veteran's widow had not been told that her October 1995 VA Form 1-9 was not accepted as an appeal. A response to that memo indicated that, to the writer's knowledge, the veteran's VA Form 1-9 had been accepted. In April 1999, the appellant again requested that her claim be reopened. In July 1999, the RO responded by informing her that her claim could not be reopened because the evidence indicated that she was not the widow of the veteran for VA purposes. (It was later shown that this letter was erroneous and that the appellant did indeed qualify for widow status.) In September 1999 correspondence, the appellant, through her accredited representative, disputed the assertion that she was not the veteran's widow. Accompanying that letter were copies of her marriage certificate and the veteran's death certificate to corroborate her widow status. In June 2000, the veteran's widow was advised that her claim of entitlement to service connection for the cause of the veteran's death remained denied. The veteran's widow expressed disagreement as to that decision in June 2000. In March 2001, a statement of the case was issued which addressed timeliness of the notice of disagreement (NOD). Later that month, the claimant perfected her appeal as to the issue of timeliness. In February 2003, a de novo review was conducted by a Decision Review Officer. A supplemental statement of the case was issued in March 2003, holding that the veteran's widow failed to file a timely NOD with the denial of service- connected cause of death last considered in May 1996. Analysis As noted above, the veteran's widow's claim for service connection for the cause of the veteran's death due to Agent Orange exposure, and the issue of entitlement to basic eligibility for Survivors' and Dependent's Educational Assistance benefits under 38 U.S.C. Chapter 35, were denied by the RO in rating decision dated in April 1995. Notice of the determinations was issued on April 17, 1995, along with her appellate rights, and the veteran's widow timely expressed disagreement with those determinations in October 1995. A statement of the case was issued in March 1996. Hence, the veteran's widow had until April 17, 1996 to complete her appeal. The record demonstrates that the record contains a signed statement by the veteran's widow which is date-stamped as received by the RO initially on April 9, 1996, albeit dated in May 1996 and also date-stamped a second time as received in May 1996. The record does not contain any clarification or explanation for the disparity in the April 1996 RO date-stamp and the May 1996 date of signature. Additionally, the record is absent any explanation for the document being twice date-stamped, with the latter being in May 1996. The law provides that when, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a claimant's claim, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. Hence, with resolution of doubt in the veteran's widow's favor, the Board finds that the signed document of record containing a date-stamp of April 9, 1996 may be accepted as a timely appeal of the April 1995 RO denial of the issues of entitlement to service connection for the cause of the veteran's death due to Agent Orange exposure, and entitlement to basic eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. II. Service Connection for the Cause of the Veteran's Death due to Agent Orange Exposure Applicable Law According to VA law and regulations, service connection may be granted for disabilities resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303. 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. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other conditions, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there is a causal connection. Id. Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, 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, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). 38 C.F.R. § 3.307(a)(6)(iii). The diseases for which service connection may be presumed due to an association with exposure to herbicide agents are enumerated at 38 U.S.C.A. § 1116(a) and 38 C.F.R. § 3.309(e). Furthermore, even if a veteran does not warrant presumptive service connection based on exposure to an herbicide agent, he or she is not precluded from otherwise establishing service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, type II diabetes mellitus, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes epithelioid sarcoma. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within thirty years, after the last date on which the veteran was exposed to a herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Sec. 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600, 42,604 (June 24, 2002). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit (CAFC) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Factual Background The veteran's service medical records do not reveal any complaints or findings of a cardiorespiratory disorder. Such records are similarly absent any indication of squamous cell carcinoma of the nasopharanyx. The service medical records do indicate that, in December 1957, the veteran underwent plastic and maxillofacial surgery as a follow-up to cleft palate surgery performed prior to the veteran's service. Several reports of medical history reflected mouth and throat complaints relating to that earlier operation. Such complaints were also seen in treatment reports, where the veteran periodically complained of laryngityis and sore throat. Finally, an August 1978 in-service chest x-ray contained an impression of right middle lobe pneumonitis. Subsequently dated service medical records fail to mention such a diagnosis. Following service, the evidence does not demonstrate any medical treatment until April 1986. At that time, the veteran reported to the VA clinic with complaints of headaches, dysarthia and dysphagia. His symptoms dated back 3 months, at which time he experienced severe neck pain, eventually spreading to his forehead. He also noted decreased taste sensation and numbness in the anterior aspect of the tongue. A report of pharyngeal biopsy, conducted in April 1986, noted the biopsy revealed fragments of a tumor indicative of squamous cell carcinoma. In May 1986, the veteran began radiation therapy and chemotherapy. Such treatments continued into June 1986. On June 6, 1986, the veteran was permitted to leave the VA clinic on pass. He was to return 2 days later. On June 8, 1986, the veteran was transported by ambulance to the hospital at George Air Force Base. He was then transferred to St. Mary Desert Valley Hospital, where he went into septic shock. The diagnoses were pneumonia with respiratory failure and severe leukopenia. He died on June [redacted], 1986. The principal diagnoses were septic shock secondary to bilateral pneumonia, and acute respiratory failure. Co- morbidities were noted as severe neutropenia and metastatic carcinoma of the nasopharynx. The certificate of the veteran's death listed the immediate cause of death as cardiorespiratory arrest, due to septic shock, as a consequence of severe lukopenia. Bilateral pneumonia was listed as another significant condition contributing to death. Analysis At the outset, the Board notes that direct service connection, including on a presumptive basis, for the veteran's terminal illness has not been established. Again, the veteran died of cardiorespiratory arrest, resulting from pneumonia and septic shock due to severe neutropenia related to metastatic carcinoma of the nasopharynx. The competent (clinical) evidence of record does not establish that such conditions were present during any period of service, nor manifested or aggravated within the applicable presumptive period of one year following service for cardiovascular-renal disease. Furthermore, while the service records do indicate a solitary finding of right middle lobe pneumonitis in August 1978, this was an acute and transitory disorder. Indeed, there is no documentation of any further treatment for that condition, either during or following service. It is further noted that, in the present case, the veteran had service in the Republic of Vietnam between January 9, 1962, and May 7, 1975. As such, the veteran is presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, there is no affirmative evidence to establish otherwise. Thus, the presumption is not rebutted here. Id. Thus, based on the foregoing, it is established that exposure to an herbicide agent occurred during the veteran's active service. This entitles the veteran to a presumptive grant of service connection for any disability listed under 38 C.F.R. § 3.309(e). However, nasopharyngeal carcinoma is not among the listed disabilities under that provision. Thus, the presumption afforded under § 3.309(e) cannot provide the basis for a grant of service connection. Finally, as stated previously, a grant of service connection for the cause of the death of a veteran is warranted where the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. Here the veteran was service-connected for herniated nucleus pulposus with sciatica, hearing loss with otitis media, conversion reaction, tinnitus and a left breast scar. The competent evidence does not establish that any of those conditions had any bearing on the veteran's death. Rather, the evidence shows that, several years subsequent to service, the veteran was diagnosed with nasopharyngeal carcinoma. While undergoing treatment for that disease, the veteran came down with pneumonia and severe neutropenia and went into septic shock. Such conditions, and not any service-connected disability or incident of service led to the veteran's fatal cardiorespiratory arrest. In conclusion, the competent evidence of record, when viewed as a whole, fails to establish a causal relationship between the veteran's service-connected disabilities and the cause of his death from cardiorespiratory arrest, due to septic shock as a result of pneumonia and severe lukopenia related to metastatic carcinoma of the nasopharynx. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Basic Eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35 Regarding the claim for educational assistance benefits under Title 38, Chapter 35, it is noted that the surviving spouse of a veteran will have basic eligibility for benefits where the veteran was discharged from service under other than dishonorable conditions, and had a permanent total service- connected disability in existence at the date of the veteran's death; or where the veteran died as a result of a service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. § 3.807(a) (2003). In this case, the veteran did not have a permanent total service-connected disability at the time of his death, and, as decided above, the cause of the veteran's death has not been shown to be service-related. Accordingly, the Board finds that the appellant has not met the conditions for eligibility for survivors' and dependents' educational assistance under Title 38, Chapter 35, and there is no legal entitlement to the benefit. See Sabonis, 6 Vet. App. 426 (1994). ORDER The veteran's widow timely appealed a denial of service connection for the cause of the veteran's death. The veteran's widow timely appealed a denial of eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. Entitlement to service connection for the cause of the veteran's death due to Agent Orange exposure is denied. Entitlement to basic eligibility for Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is denied. REMAND The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. Finally, regarding the appellant's 38 U.S.C.A. § 1151 claim, it is noted that for claims filed on or after October 1, 1997, as in this case, a claimant is required to show fault or negligence in medical treatment. Specifically, the claimant must show the veteran's death was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. In the alternative, the claimant must show that the veteran's death was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the veteran's death was an event which was not reasonably foreseeable. See 38 U.S.C.A. § 1151 (a)(1)(A) and (B) (West 2002); 63 Fed. Reg. 31,263 (1998); VAOPGCPREC 40-97; Pub. L. No. 104-204, § 422(b)(1), (c), 110 Stat. 2926-27 (1996). The Board observes that the claims file does not contain any competent medical discussion as to whether the veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care from April 1986 to June 1986. Under VA's duty to assist, if the medical evidence of record is insufficient, the Board is always free to supplement the record by seeking an advisory opinion or ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Boards finds that an opinion regarding the quality of care provided at the VA Medical Center in Loma Linda would be useful in the eventual adjudication of this issue and thus should be obtained. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must schedule a file review the veteran's claims folder by an appropriate specialist, who has not previously been involved in the veteran's care. The specialist is requested to review all pertinent medical treatment and examination records in the veteran's claims file, and offer opinions as to whether it is at least as likely as not (50 percent or more probability) that the veteran's fatal cardiorespiratory arrest, due to septic shock, as a result of severe lukopenia (neutropenia) secondary to chemotherapy for squamous cell carcinoma of the nasopharynx with bilateral pneumonia, is a result of, or was materially or substantially contributed to by, VA medical treatment from April 1986 to June 1986. The examiner should also consider whether VA hospitalization treatment accelerated the veteran's demise. The examiner must specifically comment as to whether the proximate cause of the veteran's death (or additional disability leading thereto) was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or whether the proximate cause of the veteran's death was an event which was a reasonably foreseeable result of the medical treatment. The death must actually result from VA medical treatment, and not be merely coincidental therewith. The examiner should clearly outline the rationale for all opinions expressed. The claims file with associated treatment records and this remand must be made available to, and be reviewed by, the examiner and he/she should so indicate in the report. 2. Upon completion of the above, the RO must readjudicate the issue of entitlement to dependency and indemnity compensation pursuant to 38 U.S.C. § 1151 based on treatment by VA, considering any newly received evidence. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished an appropriate statement of the case/supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2