Citation Nr: 0528371 Decision Date: 10/21/05 Archive Date: 11/01/05 DOCKET NO. 03-24 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kay Hudson, Counsel INTRODUCTION The veteran had active service from January 1964 to December 1965. He died in November 2002, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 2003. In August 2005, the appellant appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). FINDINGS OF FACT 1. The veteran died in November 2002, at the age of 61 years, of multiple organ failure due to protein-energy malnutrition secondary to poor oral intake complicating carcinoma of the tongue. 2. At the time of the veteran's death, service connection was in effect for an anxiety disorder, evaluated 50 percent disabling; this disability did not play a role in his death. 3. Carcinoma of the tongue began years after service, and was not due to any incident of service including presumed Agent Orange exposure during service in Vietnam. 4. The veteran was not in receipt of a permanent and total service-connected disability rating at the time of his death, nor did he die of a service-connected disability. CONCLUSIONS OF LAW 1. A service-connected disability did not cause or contribute to the veteran's death, and the criteria for DIC based on service connection for cause of death are not met. 38 U.S.C.A. §§ 1116, 1310 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2005). 2. The basic eligibility requirements for entitlement to Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code are not met. 38 U.S.C.A. §§ 3500, 3501(a)(1), 3510 (West 2002); 38 C.F.R. § 3.807, 21.3021 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection for the cause of the veteran's death The Board has reviewed all the evidence in the veteran's claims folder, which includes, but is not limited to: rating decisions; the appellant's contentions, including those presented at a hearing before the Board in August 2005; statements from the veteran written during his lifetime; service medical and separation records; the report of a VA Agent Orange protocol examination dated in March 1981; private and VA medical treatment records dated from March 2001 to October 2001; an August 2002 letter from J. T. Johnson, M.D.; the veteran's death certificate and autopsy report, both dated in November 2002; and medical opinions and other correspondence dated in 2003 and 2004 from C. N. Bash, M.D., H. G. Butler, M.D., and S. H. Mather, M.D. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the appellant's claim. The private and VA medical treatment records dated from March 2001 to October 2001 show that in April 2001, the veteran was diagnosed with invasive squamous cell carcinoma at the base of the tongue. At the time of the initial diagnosis, the tumor was thought to be non-resectable, and he was subsequently treated with chemotherapy and radiation therapy. Unfortunately, the cancer continued to metastasize, causing the veteran's condition to deteriorate, and he died in November 2002. According to the death certificate, he was 61 years old at the time of his death, and the immediate cause of death was respiratory failure, due to or as a consequence of squamous cell carcinoma, due to or as a consequence of acute myocardial infarction. An autopsy was conducted in November 2002, which disclosed squamous cell carcinoma of the tongue extending to the vallecula and pyriform sinuses, clinical state IV, and metastatic moderately differentiated squamous cell carcinoma to the neck, lungs, liver, adrenal glands, bladder, and heart. The cause of death was multiple organ failure due to protein-energy malnutrition secondary to poor oral intake complicating carcinoma of the tongue. To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The appellant, who is the veteran's surviving spouse, contends that the veteran developed cancer of the tongue as a result of Agent Orange exposure in Vietnam. She does not contend, nor does the evidence otherwise suggest, that cancer of the tongue, first diagnosed more than 35 years after his discharge, developed during service, or was manifest during one year after discharge. See 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). Likewise, she does not contend, nor does the evidence otherwise suggest, that his service-connected anxiety disorder, rated 50 percent disabling from December 2001 until his death, contributed to the cause of death. The evidence indicates that the veteran had up to four months of service in Vietnam during the Vietnam era. See 38 C.F.R. § 3.2(f) (2005). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2005). Although the veteran's cancer had metastasized to the lungs at the time of his death, the presumption of service connection is rebutted if the cancer develops as the result of metastasis; thus, in effect, the presumption only applies to the primary cancer. See Darby v. Brown, 10 Vet. App. 243 (1997); VAOPGCPREC 18-97. In support of her contentions, the appellant submitted an opinion, dated in January 2003, from C. N. Bash, M.D., who, according to his curriculum vitae, is board-certified in diagnostic radiology. Dr. Bash opined that it was at least as likely as not that the veteran's cancer of the tongue developed as a result of exposure to Agent Orange in Vietnam. In June 2003, the RO requested an opinion from the Director of Compensation and Pension Service, which was forwarded to S. H. Mather, M.D., the VA Chief Public Health and Environmental Hazards Officer. Dr. Mather concluded that at this time, it could not be stated that it was at least as likely as not, or likely, that carcinoma of the tongue was due to exposure to herbicides in Vietnam. Subsequently, both Dr. Mather and Dr. Bash provided supplemental opinions. Much of the content of these opinions concerns a disagreement with the interpretation of statistical data provided by National Academy of Sciences (NAS) (also referred to as IOM, or Institute of Medicine, also a National Academy, in the doctors' opinions). According to the Agent Orange Act, NAS was selected to review and evaluate the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides, as an independent, nonprofit scientific organization, with appropriate expertise, and which was not part of the Federal Government. Feb. 6, 1991, P.L. 102-4, § 3, 105 Stat. 13; Aug. 14, 1991, P.L. 102-86, Title V, § 503(a), (b)(1), 105 Stat. 424, 425. NAS published its initial findings in 1993, and then, beginning in 1996, has published biannual reviews, and, after reviewing this and other information, VA has periodically published notice, in the Federal Register, of diseases determined to be not associated with exposure to herbicide agents on several occasions, most recently on May 20, 2003 (68 FR 27630). The only NAS review explicitly mentioning oral cancers was included in the 1998 Update. Dr. Bash submitted a copy of a table included in this report, which showed a report by Kogevinas et al., in 1997 of an IARC cohort. For oral cavity and pharynx cancer, the estimated relative risk (95 percent confidence interval) was 1.1 (0.7 to 1.6). Dr. Bash asserts that the fact that the relative risk is greater than 1 means there is a positive association with Agent Orange exposure. He argues that VA is wrong in relying on a 95 percent confidence interval, because according to the benefit of the doubt doctrine, the confidence interval should be 50 percent. Dr. Mather responded, in part, that a 95 percent confidence interval is commonly used to assess the significance of scientific studies. She said, in essence, that a relative risk of 1.1 indicated a 10 percent increased risk than the comparison group, but that it was not a significant association. NAS itself, in summarizing the studies, noted that "The IARC study (Kogevinas et al., 1997) has brought together almost all of the phenoxy herbicide production workers in 36 cohorts for a joint analysis. That combined cohort study showed no effect of phenoxy herbicide exposure on oral cavity or pharyngeal cancers (R[elative] R[isk]=1.1, C[onfidence] I[nterval] 0.7-1.6)." 64 FR 59232, 59235 (1999) (emphasis added). Claims based on Agent Orange exposure are unique in that entitlement, under the presumptions codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on a positive statistical association shown by analysis of medical and scientific evidence. See 38 U.S.C.A. § 1116(b). In determining whether a presumption is warranted, the VA must take into account reports from NAS, as well as all other available sound medical and scientific information and analyses. Id. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. Id. An association is considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against the association. Id. When the Secretary determines, based on the evaluation of scientific or medical studies and after receiving the advice of the Veterans' Advisory Committee on Environmental Hazards, and applying the reasonable doubt doctrine, that a significant statistical association exists between any disease and exposure to a herbicide containing dioxin, the relevant regulation shall be amended to provide guidelines for the establishment of service connection. 38 C.F.R. § 1.17(c) (2005). A significant statistical association shall be deemed to exist when the relative weights of valid positive and negative studies permit the conclusion that it is at least as likely as not that the purported relationship between a particular type of exposure and a specific adverse health effect exists. 38 C.F.R. § 1.17(d)(1). The criteria for a valid study are also defined in the regulation, and require that a valid study be one "whose findings are statistically significant at a probability level of .05 or less with proper accounting for multiple comparisons and subgroup analyses." 38 C.F.R. § 1.17(d)(3). This supports the reliance upon a study with a 95 percent confidence interval. More importantly, VA has not found any positive association between oral cavity cancers and exposure to Agent Orange; thus, notwithstanding Dr. Bash's disagreement with the weighing of statistical data, a legal presumption does not exist, and service connection may not be granted on that basis. Service connection based on herbicide exposure may still be established with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Court acknowledged that "[a]ctual causation carries a very difficult burden of proof." Id., at 1042. The appellant herself is not competent to provide an opinion on medical causation. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Further, particularly in view of the Court's statement regarding the difficult burden of proof, and the requirements of 38 U.S.C.A. § 1116(b) and 38 C.F.R. § 1.17(d), the Board concludes that general epidemiological evidence which has already been evaluated by NAS and VA, and found not to show a positive association (as defined above), cannot establish direct causation. Thus, the NAS 1998 Update, which addressed oral cancers, is evidence against the claim, together with Dr. Mather's opinions. The autopsy report, as well as records of the veteran's treatment for cancer during 2001, which do not contain any indication that the veteran's cancer was due to Agent Orange exposure, provide further evidence against the claim. The evidence in the appellant's favor consists of the opinions of Dr. Bash and of H. G. Butler, M.D., both of whom concluded that the veteran's cancer was at least as likely as not due to Agent Orange exposure. The Board is charged with the duty to assess the credibility and weight given to evidence. Klekar v. West, 12 Vet. App. 503, 507 (1999). In his initial opinion, dated in January 2003, Dr. Bash opined that the same mucosa are in the larynx and the oral cavity, and that the larynx cannot be exposed to toxins without the oral cavity also being exposed. Dr. Mather, in response to this argument, noted that the "concept of continuous mucosa" is not convincing because tissues may have different sensitivities to similar exposure, pointing to differences in colon and rectal tissue susceptibilities. Dr. Bash argues that the colon and rectal tissues are irrelevant, but he has pointed to no studies or other evidence indicating that his interpretation is correct, and his position has not been adopted by NAS. In any event, at best, his assertion can be considered no more than suggesting a possibility of an association, which is insufficient to establish actual causation. Dr. Bash also points to a later NAS Update, which includes a study reported by Caplan, which found a relative risk of 2.2; however, this study was limited to nasal cancer, and did not include oral cancer. His arguments regarding the extrapolation of that data to cases of oral cancer are speculative. In essence, Dr. Bash disagrees with the interpretation of scientific and medical studies based on the evidence provided by NAS. He does not claim to have independently reviewed any of the studies evaluated by NAS. He has not provided any evidence indicating that his recommended methodology would result in a statistically significant conclusion, as required by law. See 38 U.S.C.A. § 1116(b); 38 C.F.R. § 1.17(d). His proposal that a "confidence interval" of 50 percent be adopted is contrary to the law. Id. Given the fact that he only refers to data which has already been analyzed by NAS and VA, his arguments are of minimal probative value, in the face of NAS's failure to find any positive association between oral cancers and Agent Orange exposure, based on the same evidence, and Dr. Mather's refutation of his arguments. With respect to Dr. Bash's contentions regarding expertise and bias, he is absolutely correct in his assertion that any association or contact he may have with organizations representing veterans is irrelevant, and should not diminish the probative value of his opinions. Even though the author of such comments was careful to emphasize that his "advocacy" did not affect the quality of his opinions, such comments are inappropriate. Further, it is legally incorrect to simply rely on the VA opinion, when two equally qualified doctors disagree. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (In evaluating the probative value of medical opinion evidence, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches should be taken into consideration.). Nevertheless, it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the fact that one is a VA doctor is not a sufficient reason. In this case, however, we are not faced with equivalent opinions. Dr. Mather, who is the VA Chief Public Health and Environmental Hazards Officer, is likely to have more expertise in epidemiology than Dr. Bash, whose expertise involves diagnostic radiology. However, it is not necessary to determine which of these doctors has greater expertise, because Dr. Bash has failed to provide any evidence to counteract the NAS reports and other evidence against the claim. More than his own assertions regarding statistical analysis are required to counterbalance the methodology employed by NAS, an organization mandated by statute to evaluate statistical information regarding Agent Orange. He has not provided, for example, other studies showing an association, or evidence that his methodology would result in statistically significant findings, as required by 38 U.S.C.A. § 1116. Regarding Dr. Butler's May 2004 opinion, concluding that the veteran had no risk factors other than Agent Orange, and that he agreed with Dr. Bash's interpretation that the statistics showed that it was at least as likely as not that the cancer was due to Agent Orange suffers from similar deficiencies. Moreover, Dr. Butler also noted that he had been "unable to find other research or clinical case histories of the relationship between squamous cell carcinoma of the tongue and Agent Orange," and that the number of cases was not sufficient to provide clear statistics one way or the other. Thus, his argument is not supported by any evidence of a positive association, specific to the veteran, or otherwise. A preponderance of the evidence describes a state of proof that persuades one that a point in question is more probably so than not, and is not amenable to any mathematical formula. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.). Thus, if the Board is persuaded that it is more probable than not that the veteran's cancer was not due to service events, the claim must be denied. Id. If the evidence is in favor of the veteran, or if the determination is "too close to call," the "tie goes to the runner," and the veteran prevails. Id. However, opinions based on speculation or remote possibility are insufficient. See, e.g., Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative to provide medical nexus evidence to well ground cause of death claim); Winsett v. West, 11 Vet. App. 420, 424 (1998) (physician's opinion in cause of death case that list of conditions submitted by appellant might be related to exposure to Agent Orange found speculative when physician also indicated that "it is just as likely that they could have another cause"), aff'd 217 F.3d 854 (Fed. Cir. 1999), cert. denied, 528 U.S. 1193 (2000); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection). The condition underlying the veteran's cause of death was a cancer of the tongue, which was first manifest many years after service, and may not be presumed to have been due to Agent Orange exposure. Further, the evidence in the veteran's favor is speculative, and, as such, insufficient to establish service connection for the cause of the veteran's death. As the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1365; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Eligibility for Educational Assistance under 38 U.S.C. Chapter 35 For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35 (see § 21.3020), the child, spouse or surviving spouse of a veteran will have basic eligibility if certain conditions are met, including, that a permanent total service-connected disability have been in existence at the date of the veteran's death, or that the veteran died as a result of a service-connected disability. 38 C.F.R. § 3.807(a) (2005). At the time of his death, he was rated 50 percent disabled due to an anxiety disorder. Moreover, we have determined that service connection for the cause of the veteran's death is not warranted. Consequently, the appellant's claim fails because of absence of legal merit or lack of entitlement under the law, and the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). III. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to provide specified notification and assistance to a claimant in the development of a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The notice must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will seek to obtain; (3) inform the claimant of the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the first three elements of the VCAA notice requirements have been satisfied by virtue of a letter sent to the appellant in February 2003. Since the letter fully provided notice of elements (1), (2), and (3), see above, it is not necessary for the Board to provide extensive reasons and bases as to how VA has complied with the VCAA's notice requirements. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In addition to the explicit VCAA notice, by virtue of the rating decision on appeal, the statement of the case, and the supplemental statement of the case, she was provided with specific information as to why her claim was denied, and of the evidence that was lacking. Evidence necessary to substantiate the claim was also discussed at the appellant's hearing in August 2005. Finally, with respect to element (4), the Board notes that the RO's letter did not specifically contain the "fourth element" (i.e., tell the claimant to provide any relevant evidence in his or her possession). However, the Board finds that she was otherwise fully notified of the need to give to VA any evidence pertaining to the claim. When considering the notification letter and the other documents described above, as a whole, the Board finds that she was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The claimant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. She was given ample time to respond to the VCAA letters. There is no allegation from the appellant that she has any evidence in her possession that is needed for a full and fair adjudication of this claim. The Board is mindful that, in concluding that the VCAA notice requirements have been satisfied, the Board has relied on communications other than the RO's formal VCAA notice letters to the appellant. However, at bottom, what the VCAA seeks to achieve is to give the appellant notice of the elements outlined above. Once that has been done-irrespective of whether it has been done by way of a single notice letter, or via more than one communication-the essential purposes of the VCAA have been satisfied. Here, the Board finds that, because each of the four content requirements of a VCAA notice has been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, e.g., 38 C.F.R. § 20.1102 (2005); Mayfield, supra. The appellant has not claimed that VA has failed to comply with the notice requirements of the VCAA. With respect to VA's duty to assist, the VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2005). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. In the present case, the Board finds that the duty to assist has been fulfilled. The veteran's service medical records have been obtained. The file contains all potentially relevant post-service private and VA treatment records identified by the veteran prior to his death and by the appellant in connection with this claim. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claims. In addition, an autopsy was conducted, and medical opinions were obtained. See 38 C.F.R. § 3.159(c)(4)(i). With respect to the Chapter 35 claim, the provisions of the VCAA do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the circumstances of this case, there is no reasonable possibility that additional efforts to assist or notify the appellant in accordance with the VCAA would assist her in substantiating her claims. Therefore, she is not prejudiced as a result of the Board proceeding to the merits of the claims. ORDER Service connection for the cause of the veteran's death is denied. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35 is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs