Citation Nr: 0927867 Decision Date: 07/27/09 Archive Date: 07/30/09 DOCKET NO. 06-07 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Craig M. Bash, M.D. ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran served from August 1966 to October 1988. His active duty encompassed combat service in the Republic of Vietnam, and his decorations included the Vietnam Service Medal with two devices. The appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's claim for service connection for the cause of the Veteran's death. In June 2006, the appellant testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. The Veteran was notified of this by correspondence dated in May 2009. In correspondence also dated in May 2009, the appellant indicated that she did not want another hearing. In November 2007, the Board requested a medical opinion from an independent medical expert (IME) in accordance with 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901(d) (2008). After the August 2008 opinion was received at the Board, the appellant was provided a copy and 60 days to submit any additional evidence or argument in response to the opinion. 38 C.F.R. § 20.903. The appellant responded with written argument and additional medical evidence and waived initial RO consideration. As such, the Board will proceed with its consideration of the appeal. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to Agent Orange during service. 2. The Veteran died on May [redacted], 2004. The death certificate lists his cause of death as carcinoid tumor. 3. The carcinoid tumor that caused the Veteran's death was first manifested many years after service and is not related to disease or injury in service, including his exposure to herbicides, such as Agent Orange. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2008). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the context of a claim for DIC benefits, § 5103(a) notice must 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)- compliant notice. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in April 2005, prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. This Board finds that this notice was sufficient with regard to the Court's language in Hupp. Because the appellant's theory of entitlement is based on presumptive Agent Orange exposure rather than on a previously service-connected condition, properly tailored notice need not have included the item listed as (1) above. Given these facts, the April 2005 letter provided the appellant with properly tailored notice in that the letter informed her that the evidence needed to show that the Veteran died in service or that his service-connected conditions caused or contributed to his death. With respect to the Dingess requirements, in April 2006, the RO provided the appellant with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist an appellant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained service treatment records and private treatment records. Further, the appellant submitted additional treatment records, and was provided an opportunity to set forth her contentions during the hearing before a Veterans Law Judge in June 2006. Next, a specific VA medical opinion pertinent to the issue on appeal was obtained in June 2005, and an IME opinion was obtained in August 2008. As such, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis When a Veteran dies from a service-connected disability, his surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant brain tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2007); 38 C.F.R. §§ 3.307, 3.309 (2008). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. A Veteran may be entitled to a presumption of service connection if he or she is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents and meets certain other requirements. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Specifically, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. A Veteran who served in the Republic of Vietnam shall be presumed to have been exposed to herbicide. 38 U.S.C.A. § 1116. In this case, the Veteran's service personnel records indicate that he served in the Republic of Vietnam during active service and is therefore presumed to have been exposed to herbicides. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2008), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. The Veteran's carcinoid tumor, later diagnosed as metastatic small cell undifferentiated cancer, however, is not among these diseases or disorders. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2008). The availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude an appellant from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The appellant is seeking entitlement to service connection for the cause of the Veteran's death. The Veteran served on active military duty from August 1966 to October 1988, with service in Vietnam. The Veteran died on May [redacted], 2004. A May 2004 death certificate lists his cause of death as a carcinoid tumor. No other principal or contributory cause of death is specified. At the time of his death, the Veteran was service-connected for arthritis in the ankles, wrists, and cervical spine; hiatal hernia; bilateral hearing loss; left ureteral calculus; scar due to inguinal hernia repair; dermatitis of the upper left leg; varicosity of the right calf; and hammertoe of the second right toe. The record before the Board contains service treatment records and post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the Veteran's cause of death. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment of cancerous tumors or related problems. The first evidence of record showing complaints, diagnoses, or treatment of cancer is dated in May 2000. In May 2000, the Veteran underwent a prostate biopsy, which revealed atypical focal glands with prominent red nucleoli. However, the physician was hesitant to make a definitive diagnosis because the focal area was so limited. In June 2000, the Veteran underwent a left prostate gland biopsy, which revealed small glands lined by enlarged atypical nuclei. The physician noted that this was a very atypical focus but was not certain whether it was diagnostic of malignancy. At a follow-up visit in July 2000, the physician noted that while the Veteran's prostate-specific antigen (PSA) value had been rising, the pathologists have been unwilling to diagnose his condition as cancer. In August 2001, the Veteran underwent a bone scan which revealed no evidence of osseus metastatic disease. A July 2003 prostate biopsy showed no malignancy. However, in September 2003, the Veteran underwent a gallbladder ultrasound which showed evidence of diffusely populated lesions within the liver, most suggestive of metastases. He then underwent a needle biopsy of the liver. The physician found evidence of infiltrating small cell undifferentiated carcinoma with compatible cytologic features and scattered mitotic features, noting that the tumor was compatible with multiple primary sites of origin. Later that month, the Veteran was referred to a hematology and oncology specialist who diagnosed the Veteran with metastatic small cell undifferentiated cancer to the liver with no obvious primary site. In October 2003, the Veteran was referred for a gastrointestinal tumor consultation, in which the physician noted the Veteran's mild prostate abnormalities and that the prostate can be a site of small cell malignancies, but concluded that it was not clear that the Veteran's prostate was the source. Later that month, the Veteran underwent a computed tomography (CT) enteroclysis, which showed no evidence of a gastrointestinal mass. The physician noted that the terminal ileum was normal, but mostly consistent with enteritis without associated obstruction. In November 2003, the Veteran was examined at the Mayo Clinic, where he was diagnosed with metastatic small cell carcinoma, poorly differentiated. An autopsy was not performed upon the Veteran's death in May 2004. A VA physician reviewed the Veteran's medical history in June 2005 and concluded that his death was not caused by prostate cancer because there was no documentation of prostate cancer at the time of his death and that it would be pure speculation to assume that the prostate gland was the source of the Veteran's cancer. The VA physician noted that the Veteran only had marginally elevated PSA values and that the Veteran's July 2003 prostate gland biopsy revealed no evidence of malignancy. Furthermore, the VA physician noted that the Veteran's immediate cause of death would be more appropriately considered as "metastatic infiltrating small cell undifferentiated carcinoma" since there was nothing within the Veteran's claims file to support a pathological diagnosis of carcinoid tumor. However, after the Veteran's death, the appellant hired a Board-certified radiologist with specialized training in neuroradiology to render an independent medical evaluation. This physician opined that the Veteran's metastatic cancer was most likely prostate in origin and caused by his exposure to Agent Orange in service. Although he conceded that the Veteran's pathology reports alone were not diagnostic of carcinoma, he concluded that the likely diagnosis is prostate cancer when the diagnostic reports are integrated with the positive ultrasound, rising PSA value, hematuria, and atypia slides, as well as the negative studies from other possible organ systems as the source. The private radiologist submitted a June 2006 addendum in which he agreed with the VA examiner's opinion that the Veteran's immediate cause of death would be more appropriately considered as "metastatic infiltrating small cell undifferentiated carcinoma." He supported his opinion of a prostatic origin by noting that: (1) the diagnosis of carcinoma appeared on the death certificate prior to the time it became only one of several considerations; (2) the physician who wrote the death certificate did not know the patient very well; (3) a July 2003 prostate biopsy was likely a false negative result because at least two previous ultrasounds guided positive for atypical cells; (4) patients with serially high PSA in the 7+ range commonly have prostate cancer; (5) atypical cells are often precursors and represent part of the early spectrum of cells found in prostate neoplasm; (6) the patient had ultrasound findings consistent with prostate cancer, namely hypocchoic regions which were the sites of the initial biopsies; (7) the doubling time for prostate cancer is relatively slow, therefore the fact that the Veteran had abnormal prostate biopsies in 2000 and died in 2004 is consistent with prostate cancer; (8) the Veteran's work-up to rule-in or rule-out cancer was negative for carcinoid when the CT enteroclysis and esophagogastroduodenoscopy (EGD) were performed with negative results; and (9) the Veteran's working diagnosis was prostate cancer, which was made by his primary care physician in 2001. The private radiologist concluded that it was more likely than not that the July 2003 biopsy was falsely negative, that it was more likely than not that the death certificate has a falsely positive diagnosis of carcinoid, that is was more likely than not that VA relied on false data in the biopsy and death certificate to reach its conclusion, that it was more likely than not that the Veteran died from undifferentiated metastatic disease that originated from his prostate, and it was more likely than not that Agent Orange exposure in Vietnam caused his prostate cancer. In response, the Board obtained its own independent medical opinion (IME) from an expert urologist in August 2008 in order to ascertain (1) the proper diagnosis of the Veteran's cause of death; and (2) the likelihood that any diagnosed carcinoma was caused by exposure to Agent Orange or other herbicides in service. After a thorough review of the entire medical record, the expert urologist opined that it was not likely that the Veteran had small-cell carcinoma of the prostate. He noted that small-cell carcinoma of the prostate is a rare tumor with only 130 cases described in medical literature to date. He added that 82 percent of small-cell carcinoma of the prostate patients suffered from local effects including gross hematuria, ureteral obstruction, and urine retention, and that the Veteran exhibited none of these features. The independent urologist stated that the three biopsies which the Veteran underwent should have provided ample tissue to determine if there was a significant amount of prostate cancer present, and concluded that small-cell carcinoma of the prostate could not be implicated in this case because a gastrointestinal source was not identified. To the contrary, he concluded that the evidence indicated that he likely did not have small-cell carcinoma of the prostate. The private urologist also criticized the opinions and conclusions of the Board-certified radiologist hired by the appellant, finding them to suffer from significant bias. In particular, he noted that three of the radiologist's conclusions were incorrect. First, PSA elevation is usually not an indicator of prostate cancer. Second, the abnormalities described on the prostatic ultrasound do not implicate prostate cancer. Finally, while there may be some evidence that Agent Orange exposure is associated with adenocarcinoma of the prostate, there is absolutely no data to support its association with small-cell carcinoma of the prostate. In correspondence dated in December 2008, the private radiologist responded to the expert radiologist's August 2008 IME. He opined that the August 2008 IME is not useful due to factual errors and because it did not provide an alternative opinion to account for the Veteran's positive ultrasound, positive PSA, or hematuria, nor did it provide another cancer source to account for the Veteran's death. Specifically, the radiologist indicated that the expert urologist incorrectly stated that the Veteran had no hematuria and disagreed with the opinion that the hypoechoic regions on the ultrasound do not implicate prostate cancer. The Board has a duty to analyze the credibility and probative value of the evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When adequately explained, the Board is free to favor one medical opinion over another. Evans v. West, 12 Vet. App. 22, 26 (1998). In evaluating the probative value of competent medical evidence, the U.S. Court of Appeals for Veterans Claims (Court) has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assigning high probative value to the August 2008 medical opinion from the independent urologist, the Board notes that he had the claims file for review, specifically discussed the findings in the claims file, and reviewed treatment records. The Board concedes that the private radiologist also had the medical record for review and specifically discussed the findings in the record. While the appellant's privately-hired radiologist, Board- certified in diagnostic radiology and a senior member of the American Society of Neuroradiology, is an expert in radiology and ultrasound, his area of expertise is not specific to urology or reproductive physiology. The August 2008 IME obtained by the Board, however, was authored by a physician certified by the American Board of Urology who specializes in matters of the prostate. Further, the August 2008 IME is supported by most of the medical evidence of record, including the opinion of the VA examiner who concluded that the Veteran's death was not caused by prostate cancer; whereas the opinion of the privately-hired radiologist dismisses much of the relevant medical evidence as "false negatives" or "false positives" in order to bolster his own opinion. Moreover, the expert urologist cast doubt upon the veracity of the conclusions rendered by the appellant's privately-hired radiologist. There is no indication that the expert urologist was not fully aware of the Veteran's medical history, or that he misstated any relevant fact. Moreover, his opinion comports with the bulk of the medical evidence of record. Therefore, the Board finds the opinion contained within the expert urologist's IME to be of great probative value. The Board affords the opinions of the privately-hired radiologist, which contradict much of the relevant medical evidence of record, much less probative weight. In his December 2008 statement, the private radiologist challenged the IME opinion on the basis that it did not "provide another cancer source to account for this patient's demise." He also provided further argument in support of his initial assessment. The Board notes, however, that the physician who authored the June 2005 VA medical opinion concluded that the Veteran did not die from prostate cancer. The August 2008 IME similarly found that the evidence indicated that the Veteran likely did not have small-cell carcinoma of the prostate. Thus, the weight of the medical evidence suggests that prostate cancer was less likely than not the cause of the Veteran's death, despite the fact that another cancer source was not identified. Further, although the Veteran served in the Republic of Vietnam while in service, presumptive service connection is not available under 38 C.F.R. § 3.309(e) for this disease. The Board observes that the Secretary recently reiterated that there is no positive association between exposure to herbicides and any condition for which he has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32395 (Jun. 12, 2007). Thus, in the absence of any medical evidence linking carcinoid tumor or undifferentiated carcinoma to service, service connection is not otherwise warranted for this disability. The Board has considered the appellant's assertions that the cancer that resulted in the Veteran's death was caused by his exposure to herbicides during service. As noted above, the record establishes that the Veteran was exposed to herbicides while serving in Vietnam. However, the only evidence that links the Veteran's cause of death to that herbicide exposure is the appellant's firm belief that it is so. Although the Board does not question the sincerity of her belief, as a lay person, she cannot provide the competent medical evidence necessary to establish a connection between the Veteran's death and his exposure to herbicides during service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a lay person is not competent to give evidence of matters that require medical knowledge); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In sum, the evidence demonstrates that the Veteran's carcinoid tumor, the only disease listed as a cause of the Veteran's death, developed many years after service and was not caused by any incident of service. The most probative medical evidence of records does not relate the Veteran's cause of death to his service. Thus, there is no basis for service connection for the cause of the Veteran's death. As the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In closing, the Board notes that in reaching this determination, it is sympathetic to the appellant's claim and does not wish in any way to diminish the Veteran's service in Vietnam. The Board, however, is precluded from granting the claims on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104(c) (West 2007). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs