Citation Nr: 1432513 Decision Date: 07/21/14 Archive Date: 07/29/14 DOCKET NO. 09-14 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1968, including a tour of duty in the Republic of Vietnam. The appellant in this matter is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The appellant testified at a RO hearing in September 2008 and a Travel Board hearing in September 2011, and copies of the hearing transcripts are of record. In April 2012, the Board remanded this claim to the RO via the Appeals Management Center (AMC) for further evidentiary development. The AMC continued the previous denial in a December 2012 supplemental statement of the case (SSOC). The appellant's claim is now ready for appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). The Board has reviewed the contents of the Virtual VA file in addition to the paper file in deciding this claim. FINDINGS OF FACT 1. The Veteran served on active duty from September 1966 to 1968. The appellant is his surviving spouse. 2. The cause of the Veteran's death in August 2006 as listed on his death certificate was cardiopulmonary arrest, due to metastatic carcinoma or pancreatic adenocarcinoma. 3. At the time of the Veteran's death, the Veteran was not in receipt of service-connected disability compensation. 4. There is no competent evidence to show that the Veteran's death was due to any disability that was incurred in service or was otherwise related to service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for dependency and indemnity compensation (DIC) benefits, VCAA notice must also include (1) a statement of the conditions, if any, for which the 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 the instant case, the Board finds that the appellant was fully apprised of the evidence required to substantiate her claim of service connection for the cause of the Veteran's death through a letter dated in November 2006. Specifically, that letter advised the appellant of the information already in VA's possession and the evidence that VA would obtain on her behalf, as well as of the evidence that she was responsible for providing to VA, to include any records not in the possession of a Federal agency. It also advised the appellant with respect to the three required notice elements as mandated by Hupp. The appellant has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the above-mentioned notice letter complies with the requirements of 38 U.S.C.A. § 5103(a) and Hupp, and afforded the appellant a meaningful opportunity to participate in the development of her claim. As to any error with respect to the timing of notice in this case, any such error was effectively cured by the readjudication of the appellant's claim in December 2012 after notice was provided. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied to the extent relevant to the matter decided herein. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the appellant. All available evidence pertaining to the appellant's claim has been obtained. The evidence includes the Veteran's service treatment records (STRs); the Veteran's death certificate; VA and private medical records; and lay statements, to include the appellant's hearing testimony. Pursuant to the April 2012 Board remand, the RO requested authorization from the appellant so that it could obtain any outstanding private medical records. However, to date, the appellant has not provided the requested authorization. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the appellant has a responsibility to cooperate in such development). For the foregoing reasons, the Board finds that the RO substantially complied with the prior remand instructions. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). The Board finds that the duty to provide an examination or opinion is not triggered based on any possible theory of entitlement. First, the Veteran's cause of death was listed as due to cardiopulmonary arrest, metastatic carcinoma and pancreatic adenocarcinoma. As the cause of death is known, an autopsy is not warranted. Daves, 21 Vet. App. at 51. Second, the appellant does not contend and the evidence does not otherwise suggest that the Veteran's cardiopulmonary arrest, metastatic carcinoma or pancreatic adenocarcinoma were present during service, continuously present since service, manifest to a compensable degree within one year of service separation, or are otherwise directly related to an incident of service. The theory of entitlement is not reasonably raised by any competent evidence, lay or medical; thus, VA's duty to provide an examination or opinion under 38 U.S.C.A. § 5103A(a) is not triggered. Wood, 520 F.3d at 1348. The Board finds that there is no reasonable possibility that a medical opinion would assist the appellant in substantiating her claim. Thus, the duty to provide an examination or opinion under 38 U.S.C.A. § 5103A(a) is not triggered by the appellant's contentions. Additionally, the appellant was afforded the opportunity to give testimony before the undersigned in September 2011. At the hearing, the undersigned identified the issue on appeal and discussed the Veteran's service and post-service history. The undersigned sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate her claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the claim based on the current record. As both the duty to notify and the duty to assist have been fulfilled to the extent required, adjudication on the merits may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis The appellant and her representative primarily contend that the Veteran's death was a result of hepatitis C attributable to service. Pursuant to 38 U.S.C.A § 1310, DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A § 1310 (West 2002); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2013). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). 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. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). In determining whether a veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013) Service connection for a disease is presumed to have been incurred in or aggravated by service even when there is no record of the disease during service if certain circumstances exist. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Applicable here are those for presumptive service connection for chronic diseases. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). First, the Veteran must have served 90 days or more of active service during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a) ; 38 C.F.R. § 3.307(a)(1) . Second, the Veteran must have manifested a chronic disease such as such as endocarditis (a term covering all forms of valvular heart disease), cardiovascular-renal disease (a term including arteriosclerosis, nephritis, organic heart disease, and hypertension), or cirrhosis of the liver to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2), (3), 3.309(a). Also applicable here are the circumstances for presumptive service connection for diseases associated with exposure to an herbicide agent. First, the Veteran must have served 90 days or more of active service during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). Second, the Veteran must have been exposed to an herbicide agent during service. A Veteran is deemed to have been exposed to an herbicide agent if he served in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Third, the Veteran must manifest a particular disease to a compensable degree within a particular time period. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If it is determined that the fatal disability could have been service-connected at the time of the Veteran's death, then analysis of whether this disability was either the principal or a contributory cause of death must be undertaken. 38 C.F.R. § 3.312 . This analysis must be made by the exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a). A service-connected disability or disability which could have been service-connected is the principal, or primary, cause of death when it, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Several risk factors for hepatitis C have been recognized. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. VA Training Letter 01-02 (April 17, 2001); VA Training Letter 98-110 (November 30, 1998). The following key points regarding the contraction of hepatitis C also have been recognized. First, hepatitis C is spread primarily by contact with blood and blood products. Second, the highest prevalence of hepatitis C infection thus is among those with repeated, direct percutaneous exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Third, hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. VA Fast Letter 04-13 (June 29, 2004). As such, VA has concluded that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. Id. The incubation period for hepatitis C infection ranges between two and 26 weeks but onset of infection may be unrecognized for years because symptoms are not severe enough to require medical attention. VA Training Letter 98-110; VA Training Letter 98-35 (April 8, 1998). The Veteran died in August 2006. The certificate of death reported the immediate cause of death as cardiopulmonary arrest, with an interval of minutes. The underlying causes of death were listed as metastatic carcinoma and pancreatic adenocarcinoma, both with an interval of months. No contributing conditions were listed. The Veteran's service personnel records show that the Veteran served in Vietnam from September 1966 to July 1968. Therefore, the Veteran is presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Cardiopulmonary arrest, metastatic carcinoma, pancreatic adenocarcinoma, and hepatitis C, however, are not listed as being associated to herbicides. The VA Secretary has determined that there is no positive association between such exposure and any condition that is not specifically so listed or for which he has not specifically determined should be so listed. See 67 Fed. Reg. 42,600-42,608 (June 24, 2002). Nor has direct service connection on this basis further has not been established. No medical opinion confirming any nexus between the Veteran's cardiopulmonary arrest, metastatic carcinoma, pancreatic adenocarcinoma and hepatitis C and in-service exposure to herbicides is of record. Such a nexus was not suggested by the medical evidence of record. At issue, then, is whether direct service connection can be established. STRs are negative for any symptoms, diagnostic tests, or clinical findings related to pancreatic cancer or hepatitis C. The STRs show that in August 1967, the Veteran presented with complaints of chills and a headache, and was diagnosed as having gonorrhea. On separation examination in July 1968, the Veteran reported a history of mumps, cramps in legs, any reaction to serum, drug, or medicine, and gonorrhea. Clinical evaluation of the Veteran was normal, and medical inspection showed the Veteran was free of communicable disease. Also associated with the STRs is a July 1968 malaria debriefing, which states that, by virtue of service in Vietnam, the Veteran was exposed to malaria and the Veteran agrees to take antimalarial tablets during service and after service. Post-service, VA medical records show that the Veteran presented with painless jaundice in June 2006. A CT of the abdomen and pancreatic protocol suggested biliary system malignancy and chronic cholecystitis. In July 2006, the Veteran was admitted for abdominal pain and obstructive jaundice. The Veteran denied intravenous drug use and tattoos. The examiner assessed pancreatic vs. biliary duct cancers. The Veteran died one month later. In June 2007, a private physician submitted a statement indicating that the Veteran was seen in June 2006 with complaints of abdominal pain for 2 weeks with nausea, vomiting and diarrhea. Blood tests showed that the Veteran had hepatitis C and multiple other abnormalities in the liver and pancreas. The physician submitted a second statement in April 2009, indicating that it is not apparent how the Veteran contracted hepatitis C, but it is his opinion that hepatitis C did play a role in the Veteran's pancreatic tumor. The examiner could not opine to what extent because of the limited interaction with the Veteran. At the appellant's September 2011 Travel Board hearing, the appellant's representative argued that the Veteran could have contracted hepatitis C in service due to his in-service diagnoses of gonorrhea and malaria. The appellant has also submitted internet articles regarding the symptoms of malaria and hepatitis C, which include nausea, fatigue, and vomiting. The Board finds that the preponderance of the competent evidence of record shows that the causes of the Veteran's death were not related to his service. The Veteran's STRs are negative for any diagnosis of cancer or hepatitis C. Although the diagnosis of gonorrhea may suggest that the Veteran engaged in high-risk sexual activity, the Veteran was free from any demonstrable communicable disease upon separation. Further, there is no competent evidence of record that relates the Veteran's cancer or hepatitis C to service. The only medical evidence of record that discusses a relationship between the Veteran's death and service is the letter from the private physician. That letter clearly stated that it is not apparent how the Veteran contracted hepatitis C. The lay statements of the appellant are competent and credible evidence regarding the visible, or otherwise observable, symptoms of the Veteran's disabilities. Washington v. Nicholson, 21 Vet. App. 191 (2007). The statements of the appellant, however, are not competent to prove that the causes of the Veteran's death are related to service. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As she is not a physician, the appellant is not competent to make a determination that that the causes of the Veteran's death are related to service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the preponderance of the competent evidence of record shows that the causes of the Veteran's death were not related to his service. Therefore, service connection for the cause of the Veteran's death is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs