Citation Nr: 9931875	
Decision Date: 11/10/99    Archive Date: 11/19/99

DOCKET NO.  98-00 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Baltimore, Maryland


THE ISSUE

Entitlement to benefits under the provisions of § 156 of 
Public Law 97-377, the Restored Entitlement Program for 
Survivors.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARING ON APPEAL

Appellant and a registered pharmacist.



ATTORNEY FOR THE BOARD

J. Horrigan, Counsel


INTRODUCTION

The veteran had active service from January 1975 to May 1986.  
He died on March [redacted], 1987, due to liver failure resulting 
from colon cancer.  In a rating action of April 1987, the RO 
granted service connection for the cause of the veteran's 
death.  The appellant is the veteran's widow.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an July 1997 rating action by the RO 
which denied eligibility benefits under the provisions of 
§ 156 of Public Law 97-377 (the Restored Entitlement Program 
for Survivors).  In April 1998, the appellant and a 
pharmacist appeared and gave testimony at a hearing before a 
hearing officer at the RO.  A transcript of this hearing is 
of record.  

The case is before the Board for appellate consideration at 
this time.  


FINDING OF FACT

1. The veteran did not die on active duty prior to August 13, 
1981.  

2.  The veteran did not die of a service-connected disability 
that was incurred or aggravated prior to August 13, 1981.  



CONCLUSION OF LAW

Eligibility for benefits under § 156 of Public Law 97-377, 
the Restored Entitlement Program for Survivors, is not 
established.  38 U.S.C.A.§§ 5107 (a) (West 1991 & Supp. 
1999); 38 C.F.R.§ 3.812(a)(1) (1999) 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board notes that the appellant's claim for 
entitlement to benefits under the provisions of § 156 of 
Public Law 97-377 is "well grounded" within the meaning of 
38 U.S.C.A.§ 5107, in that the claim is plausible.  In this 
regard, the Board recognizes that both the appellant, who is 
a medical technician, and Edward O. Ayanbiola, who is a 
registered pharmacist, have had medical training and possess 
a certain amount of medical expertise.  They are therefore 
competent to provide evidence regarding the etiology and 
causation of the veteran's fatal cancer, a key element in 
determining the appellant's entitlement to the benefit at 
issue.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993), 
YT v. Brown, 9 Vet. App. 195, 201 (1996), Goss v. Brown, 9 
Vet. App. 109 (1996).  The Board is also satisfied that all 
relevant evidence has been properly developed and that no 
further assistance to the appellant is required to comply 
with the duty to assist her mandated by 38 U.S.C.A.§ 5107.

The Restored Entitlement Program for Survivors, enacted by 
Congress in 1982, provides for the payment of benefits to 
certain surviving spouses and children of former members of 
the Armed Forces.  The Restored Entitlement Program for 
Survivors benefits replaced certain Social Security benefits 
that were either reduced or terminated by the Omnibus Budget 
Act of 1981.  See generally 38 C.F.R.§ 3.812 (1999).  In 
ascertaining a claimant's eligibility for entitlement to 
benefits under the Restored Entitlement Program for 
Survivors, the provisions of 38 C.F.R.§ 3.812 require that a 
determination first be made that the person on whose death 
the claim is based, either died on active duty prior to 
August 13, 1981, or died as a result of a service-connected 
disability that was incurred or aggravated prior to August 
13, 1981.  

A review of the veteran's records reflects that when examined 
in January 1975, prior to service entrance, no pertinent 
abnormalities were noted on clinical evaluation.  In January 
1976, the veteran was seen for complaints of pain in the 
stomach which rose into the right chest and the right side of 
the neck.  The pain was said to be precipitated by yawning, 
sneezing, or drawing breath.  It had been present for six or 
seven months and usually occurred in the morning on arising.  
The assessment was chest wall pain secondary to extreme 
stretching.  The veteran was again seen in August 1977, when 
he reported seeing spots in his urine that he believed to be 
blood.  It was reported that he had injured his back in an 
auto accident the previous May.  Rectal examination revealed 
a slightly enlarged prostate and gross hematuria.  The 
impression was rule out kidney lesion.  Later that month, it 
was reported that the veteran was passing blood clots in his 
initial urinary stream that would then become clear.  After 
evaluation, the impression was rule out prostatitis versus 
urethral stricture versus condyloma.  On further evaluation 
in late August 1977, the impression was inflammatory prostate 
with endoscopic obstruction.  A diagnosis of acute 
prostatitis was reported in late September 1977.  

In early November 1977, the veteran was again seen with 
complaints of urinary hesitancy and hematuria.  The 
impressions were chronic hematuria and prostatitis.  When the 
veteran was seen later in November 1977, it was noted that 
there had been good improvement, but he continued to have 
hematuria.  On evaluation in mid December 1977, the veteran's 
prostate was mildly tender and boggy.  The impression was 
uncertain, probable hematuria.  In mid January 1978, the 
veteran was seen with growth under the left ear that he had 
noticed the previous night.  Evaluation revealed a 2-
centimeter cyst.  When seen in early February 1978, it was 
noted that the mass was painless and hard with no cystic 
component.  The impressions were anterior cervical lymph 
node, rule out parotid gland, rule out Hodgkin's Disease.  

The veteran was hospitalized at a military medical facility 
in February 1978, for excision of his left neck mass.  He 
underwent a left superficial parotidectomy, 
nasopharyngoscopy, and excision of the left neck mass.  The 
postoperative diagnosis was left lymph node, benign 
hyperplasia.  The veteran was seen in late February 1978, for 
complaints of pain in the left lower quadrant of the abdomen 
and in the left testicle.  He also said that he was 
continuing to pass blood clots in his urine.  Evaluation 
revealed a diffusely enlarged prostate that was profoundly 
tender.  Evaluation of the testicles was normal.  The 
assessment was possible prostate abscess.  Further evaluation 
revealed no evidence of an abscess.  The impression was 
recurrence of prostatitis.  In early March 1978, it was 
reported that the veteran had recurrent prostatitis and an 
episode of left epididymitis which had resolved.  After 
bladder washing in March 1978, it was reported that there was 
no evidence of malignancy.  Benign transitional cells were 
present.  

In August 1978, it was reported that the veteran was still 
passing blood clots in his urine.  The impression was chronic 
prostatitis.  The veteran underwent urethroscopy and 
cystoscopic examination in December 1978.  That revealed no 
strictures or bleeding point ulceration.  There were, 
however, fine polyps at the prostatic urethra.  In February 
1979, it was reported that the veteran had problems with his 
left parotid incision when he ate or chewed.  He also 
reported continuing pain in the left testicle.  Evaluation in 
December 1979, revealed a normal prostate and normal external 
genitalia.  The veteran was seen in September 1980, with 
complaints of pain in the right testicle.  In October 1980, 
the veteran was noted to have a history of prostatitis with 
recent dysuria and cramps.  Records dated in August 1981, 
reflect that the veteran was seen for chest pains, and in 
January 1982, he was treated for epidemic gastroenteritis.  

In August 1985, the veteran was seen with complaints of 
abdominal pain and vomiting.  The veteran then underwent a 
rectal examination which revealed no mass, normal rectal 
tone, and a normal prostate.  The veteran was heme negative.  
Another test, however, revealed a near obstructing lesion in 
the sigmoid colon which appeared to be a carcinoma.  Biopsies 
revealed a moderately differentiated adenocarcinoma.  The 
veteran subsequently underwent a diverting loop colostomy, a 
left colectomy and a subsequent colostomy closure.  The final 
diagnosis was metatastic adenocarcinoma of the colon with 
metatastasis to the liver.  

During an April 1998 hearing at the RO, the appellant stated 
that she was a medical lab technician with over 30 years of 
experience.  She said that her husband had all the symptoms 
of cancer during service, including unusual lumps, blood in 
his urine and digestive difficulties.  She also said that he 
had difficulty swallowing and bowel and bladder problems.  
She also said that the military doctors never had these 
symptoms evaluated by an oncologist and she believed that the 
above symptoms were the original manifestations of the 
veteran's ultimately fatal cancer.  The pharmacist who 
testified, said that the veteran's persistent hematuria 
during service should have been evaluated by an oncologist at 
that time.  

In an April 1998 written statement, this same pharmacist 
essentially indicated that the veteran's prostatitis was 
inadequately treated during service and that the "fine 
polyp" noted in December 1978, while the veteran was in the 
service, later became cancerous and eventually resulted in 
the veteran's death.  

In addition to the foregoing evidence, the RO also obtained 
an opinion from a VA physician.  He stated that he had 
reviewed this case and its relevant features.  This review 
showed that the "fine polyps" noted in 1978, were urethral 
and not colorectal.  Therefore, this physician concluded that 
the veteran's colon cancer could not have been prevented by 
removal of these polyps.  Moreover, this physician found that 
the veteran's prior symptoms (burning with urination, 
hematuria, etc) were all ascribable to his urinary tract 
(prostatitis), and not to his gastrointestinal tract.  He 
specifically concluded that he did not think that the 
veteran's death from colon cancer "was related to any 
symptoms or conditions that existed prior to August 13, 
1981."  

As previously set forth, the veteran died in March 1987, due 
to liver failure caused by colon cancer.  Since the veteran 
did not die on active duty prior to August 13, 1981, the only 
remaining basis for the appellant's eligibility for benefits 
under the Restored Entitlement Program for Survivors would be 
if the veteran's colon cancer was determined to have been 
incurred or aggravated prior to August 13, 1981.  The 
veteran's service medical records document treatment prior to 
August 1981 for various medica problems, including hematuria, 
urinary hesitancy and dysuria, testicular pain, chest and 
stomach pains, and a lump in the area of the left ear.  
However, the veteran's urinary complaints and testicular pain 
were considered to be symptoms of prostatitis and 
epididymitis, while his chest and stomach complaints were 
considered to be musculoskeletal in nature.  The mass on the 
left side of the veteran's neck was found to be benign 
hyperplasia, not cancer.  The service medical records contain 
no findings of cancer until 1985, long after the August 1981 
date for eligibility for the Restored Entitlement Program for 
Survivors benefits passed.   

It has been contended by the appellant that the above 
symptoms were early manifestations of the veteran's fatal 
colon cancer.  The record also contains a statement from a 
registered pharmacist to the effect that the " fine polyps" 
found on an urethroscopy in December 1978, eventually became 
cancerous and caused the veteran's death.  However, the 
record also contains a statement from a VA physician who 
reviewed the claims folder and rendered an opinion to the 
effect that the veteran's death from colon cancer was not 
related to any symptoms or conditions that existed prior to 
August 13, 1981.  He also specifically noted that the fine 
polyps found in the veteran's urethra in 1978, involved the 
veteran's genitourinary system and did not involve the 
gastrointestinal system where the veteran's cancer ultimately 
developed.  

As set forth earlier, the Board recognizes that the appellant 
and Mr. Ayanbiola have some medical training and experience.  
However, they are not physicians and the record does not show 
that either were involved in the veteran's treatment or have 
any significant training in oncology.  Moreover, it has been 
acknowledged by Mr. Ayanbiola that he has as much as 2 years 
less medical training that a physician.  Since that is the 
case, the opinions of the appellant and Mr. Ayanbiola are 
considerably less probative than that of a VA physician who 
has had several more years of formal medical training, who 
reviewed the record and who specifically opined that the 
veteran's fatal cancer was unrelated to any symptom or 
condition that existed prior to August 13, 1981.  See Black 
v. Brown, 10 Vet. App. 279 (1997).  

In sum, the evidence does not show that the veteran's fatal 
cancer of the colon was in existence prior to August 1981.  
Moreover, the record does not show that it was present within 
one year after August 1981, as to be presumed present on that 
date under 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 
38 C.F.R. § § 3.307, 3.309.  The evidence also does not 
establish that the veteran's fatal cancer was related to any 
disorder or condition in existence prior to August 13, 1981.  
Under these circumstances, the appellant is not eligible for 
benefits under the provisions § 156 of Public Law 97-377, the 
Restored Entitlement Program for Survivors.  







ORDER  

Eligibility for benefits under the provisions § 156 of Public 
Law 97-377, the Restored Entitlement Program for Survivors, 
is denied.  



		
	MICHAEL E. KILCOYNE
	Acting Member, Board of Veterans' Appeals