Citation Nr: 0814499 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-31 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35. 3. Entitlement to burial benefits. ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The veteran had active military service from March 1980 to May 1982 and from December 1990 to June 1991. He also had service in the Reserves. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 decision and a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The April 2003 decision denied entitlement to burial benefits. The rating decision denied service connection for the cause of the veteran's death and basic eligibility for Dependents' Education Assistance benefits. FINDINGS OF FACT 1. The veteran died in February 2003; according to his death certificate, the immediate cause of death was angiosarcoma. 2. At the time of the veteran's death, service connection was not in effect for any disability. 3. The disease process leading to the veteran's death is not attributable to his active military service. 4. The veteran was not service connected for any disability during his lifetime and a service-related disability did not cause or contribute to his death. 5. At the time of his death, the veteran was not in receipt of VA pension or compensation and he did not die while hospitalized by VA. CONCLUSIONS OF LAW 1. Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1310, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311, 3.312 (2007). 2. Basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 has not been established. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.807, 21.3021 (2007). 3. The criteria for burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303 (West 2002 & Supp. 2007); 38 C.F.R. § 3.1600 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). During the pendency of the claim, the United States Court of Appeals for Veterans Claims (Court) issued a decision regarding the general notice requirements for Dependency and Indemnity Compensation (DIC) claims. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Notice for DIC claims is to 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. Id. at 352- 53. The Board finds that all notification and development action needed to render a decision as to the claim on appeal has been accomplished. Through a May 2003 notice letter, the RO notified the appellant of the information and evidence needed to substantiate her claim of service connection for the cause of the veteran's death, as well as other DIC benefits. In this case, the veteran was not service-connected for any disabilities at the time of his death. He was also not receiving compensation or pension at the time of his death. Thus, notification regarding those aspects was not necessary. The Board also finds that the May 2003 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the appellant that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the appellant to submit medical evidence and treatment records regarding a relationship between the veteran's death and a disability that had its onset during service. The appellant was also told that it was her responsibility to make sure that VA received all requested records that were not in the possession of a Federal department or agency. Consequently, the Board finds that the appellant has been put on notice to submit any pertinent evidence that she may possess. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The veteran's service medical records have been obtained and associated with the claims file. The appellant submitted medical records from multiple private treatment providers, including treatment records from the time period leading up to the veteran's death. Although no final hospital summary was available, the medical evidence obtained is sufficient to decide the claim. In August 2004, the appellant requested a hearing before the RO. An informal conference before a decision review officer was conducted in January 2005. The appellant was told that she still had the right to a future hearing, but she did not request one. In September 2007, the claim was referred to the Director of the Compensation and Pension Service to address the possibility of a relationship between the veteran's cause of death and in-service exposure to ionizing radiation. In December 2007, the Chief Public Health and Environmental Hazards Officer issued a medical opinion on the matter, the report of which is of record. Under these circumstances, the Board finds that VA has complied with the duties to notify and assist required by the VCAA. II. Analysis A. Cause of Death Service connection may be established for disability resulting from disease 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, 3.304 (2007). A surviving spouse of a qualifying veteran who died as a result of a service- connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2007); 38 C.F.R. § 3.312 (2007). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). 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. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). 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 accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). According to his death certificate, the veteran died on February 15, 2003, at the Hospice of Cincinnati. The immediate cause of death was listed as angiosarcoma. No other immediate or underlying causes of death were listed. (The record of death was corrected at a later date, but the corrections were not of consequence to the issues at hand). At the time of his death, the veteran was not service connected for any disabilities. In April 1995, he did file a claim of service connection for a skin rash, headaches, memory loss, and seminoma with the loss of a lung. However, the claims were later denied and he did not appeal the denials. The medical records from the time period leading up to the veteran's death contain a November 2002 radiation oncology consultation report by R.B.S., M.D., from The Christ Hospital in Cincinnati, Ohio. Dr. R.B.S. noted the veteran's medical history that included a previous diagnosis of a mediastinal germ cell tumor in 1994. The veteran underwent chemotherapy and a surgical resection in 1994 and had been without evidence of disease regarding the germ cell tumor since that time. In early 2002, the veteran began to experience back discomfort. Disc disease was diagnosed, but no further significant findings were demonstrated. In October 2002, the veteran developed extremity weakness and was seen Mercy Hospital in Fairfield, Ohio. It was felt that he had acute spinal cord compression as a result of an epidural hematoma or tumor. The veteran was then transferred to The Christ Hospital. In November 2002, an MRI of the cervical spine showed a right paravertebral soft tissue mass. It was centered at the C7-T1 area and extended over the right lung. A follow-up CT scan of the chest confirmed the existence of the mass in the right paravertebral area. The results were thought to be consistent with metastatic involvement of the lung. Dr. R.B.S.'s final assessment was angiosarcoma of the right paravertebral area at T1 diagnosed in November 2002, metastatic to the lung. Dr. R.B.S. did not provide an opinion relating the veteran's angiosarcoma to his active military service. Letters dated in December 2002 from W.D.T., M.D., and B.A.M., M.D., confirmed Dr. R.B.S.'s diagnosis. Dr. W.D.T. stated that the veteran was suffering from a malignant sarcomatous tumor in the right paraspinal superior pulmonary region. In November 2002, Dr. W.D.T. performed a decompression surgery from the C7 to T11 region to address the condition. Dr. B.A.M. noted at that time that the veteran was permanently disabled due to metastatic sarcoma to the lungs with involvement in the spine. Dr. B.A.M. ultimately completed the cause of death section on the veteran's death certificate. Because the veteran was not service connected for angiosarcoma at the time of his death and the evidence does not indicate that there was another principal or contributory cause of death, the competent medical evidence must show that the veteran's angiosarcoma was attributable to his active military service in order for the appellant's claim to be successful. A review of the medical records does not reveal that any of the veteran's treatment providers related the veteran's angiosarcoma to his military service. This includes the most recent records from the Hospice of Cincinnati. Other private treatment records, dated from February 2000 to October 2002, primarily pertain to treatment for bronchitis and back pain. Angiosarcoma is not evidenced in the record prior to November 2002. The appellant contends that records from the Charleston Area Medical Center and HealthPlus Family Health Center, dated in February 2000, show that the veteran should have been diagnosed at that time. Those records do not refer to angiosarcoma and no competent medical provider has noted that the veteran had angiosarcoma prior to November 2002. In any event, the records from February 2000 do not reference the veteran's military service. The veteran's service medical records do not contain any information or evidence pertaining to angiosarcoma or any other tumorous cancer. On two occasions, during his March 1980 entrance examination and a February 1985 periodic examination for Reserves service, the veteran reported that he had a history of a "tumor, growth, cyst, [or] cancer." However, the veteran explained that he was referring to a previous cyst on his neck. All examinations were normal regarding the lungs and the spine. No tumor or cancer was identified during service. Therefore, in consideration of the service medical records and the post-service private treatment records, there is no indication that the veteran's angiosarcoma was attributable to his active military service. As a result of the February 2005 informal conference, a theory of service connection as a result of exposure to ionizing radiation was raised. The procedural provisions of that regulation apply because cancer is considered a radiogenic disease, the veteran developed a type of cancer that became manifest within the requisite timeframe, and the veteran was exposed to ionizing radiation during military service. See 38 C.F.R. § 3.311 (2007). In accordance with those provisions the claim was properly referred to the Under Secretary for Health, by way of the Director of Compensation and Pension Service, for an advisory opinion. In December 2007, an opinion was issued by L.R.D., M.D., who was the Chief Public Health and Environment Hazards Officer for VA. As documented in the veteran's service records, Dr. L.R.D. determined that the veteran was exposed to a dose of ionizing radiation during military service of .006 rem. Dr. L.R.D. stated that exposure to ionizing radiation is associated with the development of soft tissue sarcomas, but the risk appears to be very low at doses of less than 1000 rads. Based on studies from the National Institute of Occupational Safety and Health, Dr. L.R.D. found that there was a .01 percent probability of causation. In light of that result, Dr. L.R.D. gave the opinion that it was unlikely that the veteran's angiosarcoma was attributable to occupational exposure to ionizing radiation in service. Based on this uncontradicted and persuasive opinion, the Board finds that service connection is not warranted for the cause of the veteran's death as a result of in-service exposure to ionizing radiation. The veteran also contends that service connection for the cause of the veteran's death may be warranted under 38 C.F.R. § 3.309(a). That provision provides that certain chronic diseases, such as malignant tumors or tumors of the spinal cord, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The medical records provide no objective evidence that angiosarcoma manifested itself to a compensable degree within one year of the veteran's separation from either period of active military service. As noted above, angiosarcoma was first diagnosed in November 2002, which was over ten years after the veteran's separation from his second period of service. Thus, service connection is not warranted for the cause of the veteran's death on a presumptive basis. The Board has considered the appellant's written contentions with regard to her claim of service connection for the cause of the veteran's death. While the Board does not doubt the sincerity of the appellant's belief that the veteran's death was related to his time in service, as a lay person without the appropriate medical training or expertise, she is not competent to provide a probative opinion on a medical matter-such as the etiology of a disability or the cause of a death. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992)). For all the foregoing reasons, the Board finds that the claim of service connection for the cause of the veteran's death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Basic Eligibility for Dependent's Educational Assistance For the purposes of Dependents' Educational Assistance under 38 U.S.C. Chapter 35, basic eligibility exists if, among other things, the veteran was discharged from service under conditions other than dishonorable and died as a result of service-connected disability or a permanent total service- connected disability was in existence at the date of the veteran's death. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.807, 21.3021 (2007). In short, the veteran was not service connected for any disability during his lifetime and there has been no finding that a service-related disability caused or contributed to his death. Consequently, the basic threshold eligibility requirements for Dependents' Educational Assistance benefits have not been met. C. Burial Benefits If a veteran dies during active military service or dies as a result of a service-connected disability or disabilities, an amount may be paid toward the veteran's funeral and burial expenses. 38 U.S.C.A. § 2307 (West Supp. 2007); 38 C.F.R. § 3.1600(a) (2007). In this case, the Board determined above that the veteran was not service connected for any disability and he did not die as the result of a service-related disability. If a veteran's death is not service connected, an amount may still be paid toward funeral and burial expenses. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1600(b) (2007). Entitlement to payment of burial expenses may be established if: at the time of death the veteran was in receipt of pension or compensation; or the veteran had an original or reopened compensation or pension claim pending at the time of death and there is sufficient evidence of record on the date of the veteran's death to have supported an award of compensation or pension effective prior to the date of the veteran's death; or the deceased was a veteran of any war or was discharged or released from active service for a disability incurred or aggravated in line of duty, and the body of the deceased is being held by a State (or a political subdivision of a State). 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). Additionally, burial benefits are payable if a veteran dies from nonservice-connected causes while properly hospitalized by VA. 38 U.S.C.A. § 2303(a) (West 2002); 38 C.F.R. § 3.1600(c) (2007). (During the pendency of the appeal, the provisions regarding burial benefits were amended. See 71 Fed. Reg. 8215 (Feb. 16, 2006); 71 Fed. Reg. 44915 (Aug. 8, 2006); 72 Fed. Reg. 8 (Jan. 3, 2007). However, the changes to the regulation are inapplicable to the appeal at hand.) The Board finds that the evidence of record does not support entitlement to burial benefits. At the time of his death, the veteran was not in receipt of pension or compensation, did not have an original or reopened compensation or pension claim pending, and the body was not being held by a State. Moreover, the veteran did not die while hospitalized by VA. Accordingly, entitlement to burial benefits is not warranted. ORDER Service connection for the cause of the veteran's death is denied. Basic eligibility for Dependents' Education Assistance under 38 U.S.C. Chapter 35 is denied. Burial benefits are denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs