Citation Nr: 0610226 Decision Date: 04/07/06 Archive Date: 04/13/06 DOCKET NO. 04-35 148 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran had active duty service from January 1968 to October 1981. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the RO, which denied entitlement to service connection for the cause of the veteran's death. The appellant testified at a hearing before the undersigned via video teleconference in January 2006. FINDINGS OF FACT 1. The veteran died in July 2003. His death certificate reflects that the immediate cause of death was an intracranial hemorrhage due to disseminated intravascular coagulation due to sepsis due to acute myelogenous leukemia. 2. At the time of his death, the veteran was not in receipt of service connection for any disability. 3. The veteran did not serve in-country in Vietnam; and he is not shown to have been exposed to Agent Orange or asbestos during service. 4. A preponderance of the evidence indicates that the veteran's death is not related to any in-service disease, injury, or event. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants of VA benefits. The VCAA notice requirements have been satisfied by virtue of letters sent to the appellant in October 2003. The letter advised the appellant what information and evidence was needed to substantiate the claim decided herein and of her and VA's respective duties for obtaining evidence. Quartuccio v. Principi, 16 Vet. App. 183 (2002). She was specifically told that it was her responsibility to support the claim with appropriate evidence. The appellant has not alleged that VA failed to comply with the notice requirements of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In addition, by virtue of the rating decision on appeal and the statement of the case, she was provided with specific information as to why this claim was denied and of the evidence that was lacking. She was also supplied with the complete text of 38 C.F.R. § 3.159(b)(1) in the statement of the case. The letter did not specifically tell the appellant to provide any relevant evidence in her possession. However, she was otherwise fully notified of the need to give to VA any evidence pertaining to the claim. 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. When considering the notification letter, the rating decision on appeal, and the statement of the case 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. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). 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, what the VCAA seeks to achieve is to give those claiming VA benefits notice of the elements discussed in Pelegrini II. Once that is done-whether by a single notice letter or via more than one communication-the essential purposes of the VCAA have been satisfied. Here, 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 (2004); Mayfield, supra. The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records are in the file. The file contains information from the National Personnel Records Center regarding the lack of in-country Vietnam service. The file also contains identified private medical treatment records. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. 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. An opinion is not needed herein because there is no competent evidence linking the veteran's causes of death to his service, as discussed in detail below. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate her claim of service connection for the cause of the veteran's death, but she was not provided with notice of the type of evidence necessary to establish an effective date. Such omission is harmless because, as outlined in detail below, service connection for the cause of the veteran's death is not warranted. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998) (indicating essentially that an error is harmless when it does not reasonably affect the outcome of a case). VA satisfied its duties to inform and assist the appellant at every stage of this case. Therefore, she is not prejudiced by the Board's consideration of the merits of the claim in this decision. Law and Regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including leukemia and malignant tumors, when manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2005). Notwithstanding the lack of a evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. Service connection may also 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. See 38 C.F.R. § 3.303(d). Service connection - cause of death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2005). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. The issue involved will be determined 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). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause 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 the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312. In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection - Agent Orange exposure 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). Prostate cancer and chronic lymphocytic leukemia are deemed associated with herbicide exposure. 38 C.F.R. § 3.309(e) (2005). Prostate cancer and chronic lymphocytic leukemia shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, 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 and 38 C.F.R. § 3.307(d) are also satisfied. In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). Service connection - asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos- related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Factual Background The service medical records are silent as to complaints or diagnoses that would suggest prostate cancer or acute myelogenous leukemia. The National Personnel Records Center has indicated no service in the Republic of Vietnam. In October 1981, the veteran signed a form stating that he had not been exposed to asbestos before or during service and that he had never worked directly with asbestos. In or about January 2002, adenocarcinoma of the prostate was diagnosed. Approximately one year later, acute myelogenous leukemia was found. The veteran died in July 2003. His death certificate reflects that the immediate cause of death was an intracranial hemorrhage due to disseminated intravascular coagulation due to sepsis due to acute myelogenous leukemia. At her January 2006 hearing, the appellant contended that the veteran's death was service connected because he was exposed to Agent Orange in service and because his prostate cancer turned into leukemia. The appellant indicated that she had no direct knowledge of service in Vietnam because the veteran never discussed the war. The appellant alleged, however, that the veteran was exposed to Agent Orange because the airplanes aboard his ship were covered with Agent Orange. Discussion Initially, the Board concludes that service connection for leukemia (one of the veteran's underlying causes of death) is not warranted on a presumptive basis because it was first diagnosed over two decades after service separation. 38 C.F.R. §§ 3.307, 3.309. There is no medical evidence that otherwise states or suggests that leukemia is related a disease, injury, or event of service. See 38 C.F.R. § 3.303 (d). Thus, service connection for the cause of the veteran's death based on leukemia is denied. 38 C.F.R. § 3.312; Hickson, supra. Further, the veteran's other causes of death - an intracranial hemorrhage (immediate cause of death), disseminated intravascular coagulation, and sepsis were first noted decades after service, and there is no competent medical evidence on file which links such to service. The appellant maintains that the veteran's prostate cancer turned into his fatal leukemia. There is no competent medical evidence of record which supports this theory, and the appellant is not competent to render medical opinions upon which the Board may rely. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Even if the Board were to assume, for argument purposes, that there was a link between prostate cancer and leukemia, it is noted that the veteran did not have in-country service in Vietnam; as such, prostate cancer is not subject to presumptive service connection. 38 C.F.R. §§ 3.303, 3.307, 3.309. Additionally, there is no evidence on file which otherwise links prostate cancer to a disease, injury or event of service. Since prostate cancer is not in any way shown to be related to service, any disease or condition emanating from it cannot be said to be related to service. It follows that service connection for any condition caused by prostate cancer is not one upon which service connection for cause of death can be granted. 38 C.F.R. § 3.312; see also 38 C.F.R. § 3.310 (2005) (the regulation pertaining to secondary service connection). Further, with regard to asbestos exposure, it is noted that the veteran denied inservice asbestos exposure. In any event, there is no competent evidence establishing a link between asbestos exposure and his causes of death. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) (West 2002), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs