Citation Nr: 0814590 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-05 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from January 1962 to December 1964. He died in October 1994. The appellant in this case is the veteran's widow. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for the cause of the veteran's death. FINDINGS OF FACT 1. According to the certificate of death, the veteran died in October 1994 from squamous cell carcinoma of the esophagus with metastasis to the lungs and liver. 2. At the time of the veteran's death, service connection was not in effect for any disability. 3. The veteran's metastatic squamous cell carcinoma of the esophagus was not present during his active service or for many years following his discharge from active duty, and there is no indication that the veteran's fatal metastatic squamous cell carcinoma of the esophagus was causally related to his active service or any incident therein. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence she is expected to provide, as well as the information and evidence VA will seek to obtain on her behalf. In addition, VA must advise a claimant to provide any additional evidence in her possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, the Court has held that section 5103(a) notice 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). In this case, in a March 2005 letter issued prior to the initial decision on the claim, the RO notified the appellant of the information and evidence needed to substantiate and complete a claim of service connection for the cause of the veteran's death, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. The letter also advised the appellant to submit or identify any additional information that she felt would support her claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board finds that the content of the March 2005 VCAA letter is sufficient to comply with the Court's holding in Hupp. In that regard, the Board notes that the veteran was not service-connected for any disability during his lifetime, nor did the appellant contend. Rather, she asserted that the cause of the veteran's death, cancer, had been incurred in service as a result of his exposure to Agent Orange. The RO responded appropriately to her specific claim with a detailed March 2005 VCAA notice, which included notification of the information and evidence needed to substantiate a DIC claim, as well as specific information related to substantiating a claim of service connection for disabilities based on exposure to Agent Orange in Vietnam. The Board finds that this letter is sufficient to meet VA's VCAA notice obligations. See Hupp, supra ("It follows therefore that when a claimant's DIC application and accompanying evidence expressly raises a specific issue regarding ...a particular element of a claim, VA is required to provide notice that (1) informs the claimant of how to substantiate the assertion advanced and (2) takes into account the evidence submitted in connection with the application). The Board does acknowledge that the VCAA letter discussed above does not specifically satisfy the additional requirements delineated by the Court in Dingess/Hartman. Nonetheless, the Board finds that the evidence does not show, nor does the appellant contend, that any notification deficiencies have resulted in prejudice. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Because service connection for the cause of the veteran's death has been denied, the additional Dingess/Hartman elements, such as effective date, are not at issue and any failure to notify the appellant of this element does not prejudice her at this juncture. In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence she should submit to substantiate her claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). For the reasons discussed above, the Board finds that VA has fulfilled its VCAA notification duties to the appellant to the extent necessary. Again, neither the appellant nor her representative has argued otherwise. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In this case, the veteran's service medical records are on file, as are post-service clinical records identified by the appellant. The RO has also contacted the National Personnel Records Center (NPRC) to request verification of the veteran's claimed service in Vietnam. As set forth below, the NPRC responded unequivocally that the veteran's service personnel file contained no indication that he served in Vietnam. The Board further notes that neither the veteran's DD Form 214 nor his service medical records contain any indication that he served in Vietnam. Indeed, such records note only service in Europe during the Vietnam era. The appellant has neither submitted nor identified any additional outstanding evidence relevant to her claim, and none is evident from a review of the record. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2007). The Board further finds that a VA medical opinion is not necessary with respect to this claim. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (holding that VA's duty to obtain a medical opinion under 38 U.S.C. § 5103A(d) does not apply to a DIC claim, as the applicability of this provision is explicitly limited to claims for disability compensation). Moreover, the Board finds that a medical examination would not be necessary to make a decision on this claim under 38 U.S.C. § 5103A(a). In that regard, as set forth below, the record on appeal indicates that the veteran's fatal metastatic squamous cell carcinoma of the esophagus was not present during his active service or for many years following his discharge from active duty, and the record shows that the veteran did not serve in Vietnam, nor is there any indication that his fatal metastatic squamous cell carcinoma of the esophagus was causally related to his active service or any incident therein. Under these circumstances, the Board finds that a medical opinion is not necessary. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA duties to the veteran. A remand for additional notification or development would only result in unnecessarily delaying this matter with no benefit flowing to the appellant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, no further notification or development action is necessary on the issues now being decided. Again, neither the appellant nor her representative has argued otherwise. Background The veteran's service medical records are negative for complaints or findings of esophageal, lung or liver cancer. At his October 1964 military separation medical examination, the veteran's mouth, throat, lungs, and chest were normal. A chest X-ray was also normal. On a report of medical history, the veteran denied symptoms such as shortness of breath, a chronic cough, liver trouble, and cancer. The record on appeal contains post-service medical records, dated from March 1992 to October 2004. In pertinent part, these records show that in March 1992, the veteran was treated for pulmonary emphysema. It was noted that he was a heavy cigarette smoker. In August 1992, he was treated for COPD. In February and March 1994, he complained of a nonproductive cough and difficulty swallowing. A bronchoscopy with biopsy was performed and revealed squamous cell carcinoma of the esophagus. He was treated with chemotherapy and an esophagectomy, but a post-operative CT scan of the abdomen showed pulmonary and hepatic metastases. In October 1994, the veteran died at a private hospital. The terminal hospital summary notes a diagnosis of squamous cell carcinoma of the esophagus, status post esophagogastrectomy and status post chemotherapy. The veteran's death certificate lists the cause of his death as squamous cell carcinoma of the esophagus with metastasis to the lung and liver. In February 2005, the appellant submitted an application for VA compensation benefits, seeking service connection for the cause of the veteran's death. She claimed that the veteran was a Vietnam veteran and that he died from lung cancer as a result of exposure to Agent Orange in Vietnam. In a September 2005 statement, the appellant recalled that during his lifetime, the veteran had nightmares and flashbacks of his Vietnam combat experiences. She indicated that the veteran should have been service-connected for post-traumatic stress disorder (PTSD) and cancer of the esophagus, lungs, and liver from Agent Orange. In a February 2006 statement, the appellant indicated that she knew that the veteran had served in Vietnam and that she would submit statements from the veteran's friends in support of her claim, but such evidence was not forthcoming. Applicable Law Cause of death To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the immediate or underlying cause. A contributory cause of death is inherently one not related to the principal cause. In determining whether a service- connected disability contributed to death, it must be shown that it contributed substantially or materially to death; 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) (2007). Generally, minor service- connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2) (2007). However, service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of the death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3) (2007). The regulations also state that there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition affected a vital organ and was of itself of a progressive and debilitating nature. 38 C.F.R. § 3.312(c)(4) (2007). Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service connection for certain diseases, such as malignant tumors, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2007). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2007). In addition to the criteria set forth above, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 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; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include Type II diabetes, Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The enumerated diseases do not include esophageal cancer. See 38 C.F.R. § 3.309(e) (2007); see also Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630-27,641 (May 20, 2003). In addition to the presumptive regulations, a veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2007). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, Derwinski, 1 Vet. App. 49, 54-55 (1990). Analysis The appellant contends that the metastatic esophageal cancer which caused the veteran's death was incurred in service as a result of his exposure to Agent Orange in Vietnam. She further argues that the veteran had post-traumatic stress disorder (PTSD) as a result of experiences in Vietnam. After a careful review of the evidence, the Board finds that service connection for the cause of the veteran's death is not warranted. The veteran died in October 2004, approximately 30 years after his discharge from active duty. As indicated on the death certificate, the cause of death was squamous cell carcinoma of the esophagus, with metastasis to the lungs and liver. No other conditions were noted. As discussed in detail above, there is no showing that the veteran had esophageal cancer during service, nor does the evidence show that esophageal cancer became manifest to a compensable degree within one year following discharge. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). In fact, the veteran was not diagnosed as having esophageal cancer until March 1994, approximately 30 years after his separation from active service. The appellant does not argue otherwise. Although the record shows that the veteran's fatal metastatic esophageal cancer was not present in service or for many years thereafter, as set forth above, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Thus, if there is a causal connection between the veteran's fatal pancreatic cancer and any incident of service, service connection may be established. Godfrey v. Derwinski, 2 Vet. App. 354 (1992). In this case, however, the record contains no probative evidence of a link between the veteran's fatal metastatic esophageal cancer and his active service. With respect to the appellant's contentions that the veteran's esophageal cancer was due to his exposure to Agent Orange in Vietnam, the Board notes that the service department has certified that the veteran's service personnel records contain no evidence that the veteran served in Vietnam. The Board notes that this DD Form 214 shows that he served in Europe. He received no awards or decorations indicative of combat service or of service in the Republic of Vietnam. His service medical records are also silent for any indication that he served in Vietnam. For these reasons, the Agent Orange presumptive provisions are not for application. In any event, the Board notes that because esophageal cancer is not among the disabilities listed in 38 C.F.R. § 3.309(e), presumptive service connection for esophageal cancer due to Agent Orange exposure would not be warranted, even if the veteran had served in Vietnam. While respiratory cancers, are among the enumerated diseases, VA's General Counsel has held that presumptive service connection may not be established under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309(e) as being associated with herbicide exposure if the cancer developed as the result of metastasis of a cancer that is not associated with herbicide exposure. See VAOPGCPREC 18-97, published at 62 Fed. Reg. 37954 (1997); see also Darby v. Brown, 10 Vet. App. 243 (1997) (holding that the presumption of service connection for lung cancer was rebutted by medical evidence showing that it was metastatic and not primary). Such is the situation here. The medical evidence consistently describes the veteran's lung and liver cancer as metastatic. There is no indication that either cancer was primary. The Board has also considered the appellant's contentions to the effect that the veteran developed PTSD as a result of experiences in Vietnam. The record on appeal contain no competent evidence that the veteran had been diagnosed as having PTSD during his lifetime. Moreover, PTSD has not been implicated as either a primary or contributory cause of his death. As the record does not establish that the appellant possesses a recognized degree of medical knowledge, she lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a diagnosis or opinion on etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In summary, the Board finds that the evidence shows that metastatic esophageal cancer, the primary cause of the veteran's death, was not present during service or for many years thereafter and the record contains no indication that the veteran's fatal metastatic esophageal cancer is causally related to his active service or any incident therein. The record does not otherwise show that a disability of service origin was a principal or contributory cause of the veteran's death, nor was the cause of his death in any way etiologically linked to service. Although the Board is sympathetic with the appellant's loss of her husband, absent such evidence, there is no basis upon which to award service connection for the cause of the veteran's death. The Board is not permitted to engage in speculation as to medical causation issues but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death and therefore the claim must be denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs