Citation Nr: 1000418 Decision Date: 01/05/10 Archive Date: 01/15/10 DOCKET NO. 06-23 284 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky 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, S.H. ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from December 1954 to January 1959, and from October 1961 to August 1969. He also had service in the Army National Guard thereafter. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that the Louisville, Kentucky, RO has jurisdiction of the appellant's claim. The appellant testified before the undersigned Veterans Law Judge at a video hearing in October 2006. A transcript of the hearing is of record. Since the hearing and the statement of the case (SOC) additional evidence has been received, without a waiver, in the form of VA treatment records. Normally, absent a waiver, a remand is necessary when evidence is received by the Board that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, the records are not pertinent to the issue on appeal because although the records show treatment for the Veteran, the records do not relate to the question of whether the Veteran's cancer contributed to his death. Consequently, a remand is not necessary. FINDINGS OF FACT 1. The Veteran died in October 1999. 2. The Veteran's death certificate lists the immediate cause of death as acute myocardial infarction. 3. At the time of the Veteran's death, service connection had not been established for any disability. 4. The competent evidence fails to demonstrate that the Veteran's cancer contributed to his cause of death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Merits of the Claim The appellant contends that the Veteran died of complications from lung cancer, and that his cancer was the result of Agent Orange exposure. In order to establish service connection for the cause of the 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. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2009). This question will be resolved by the use 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. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2009). In determining whether a 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2009). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Issues involved in a claim for Dependency and Indemnity Compensation [DIC] are decided without regard to any prior disposition of those issues during the Veteran's lifetime. 38 C.F.R. § 20.1106 (2009). Service connection may be established for a current disability in several ways including on a direct basis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2009). Direct service connection may be established for a current disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2009). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and, (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d) (2009); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Post-service treatment records indicate that the Veteran had been diagnosed with esophageal cancer in 1998, and with stage I adenocarcinoma of the esophagus with nodal recurrence in 1999. Although the appellant contends that the Veteran had lung and prostate cancer as well, the competent medical evidence does not show lung or prostate cancer; CT scans of the chest and abdomen, and a chest x-ray, in October 1998 showed no active disease; atelectasis at the base of the left lung; and no evidence of any metastatic disease in the chest. Additionally, the records show that the Veteran smoked cigarettes for 40 some years. The Veteran died in October 1999. The cause of death shown on the Certificate of Death was acute myocardial infarction. No conditions were listed as contributing to the Veteran's death. At the time of the Veteran's death, he was not service connected for any disabilities. The appellant has not contended that the Veteran's myocardial infarction itself was caused by his military service, in that the appellant has not contended that the Veteran had a heart condition or heart disease related to his military service. In this regard, a rating decision dated in March 1993 awarded the Veteran a nonservice-connected disability pension due to a myocardial infarction in 1988 followed by five vessel bypass graft surgery; uncontrolled hypertension; and recurrent angina. There is no indication that the Veteran ever contended that he had a heart condition related to his military service, nor has the appellant made that contention. Additionally, a review of the medical evidence of record does not show that the Veteran's heart condition has ever been opined to be related to his military service, nor has the possibility that it was related ever been raised. Rather, the appellant's contention is that the Veteran's cancer was related to his service, and it was his cancer that contributed to his cause of death. The Board's attention is therefore directed to the questions of whether his cancer contributed to his cause of death; and, if so, whether the cancer was related to his military service. A record from M.J., M.D. dated in October 1999 reveals that the Veteran's cause of death was opined to be unrelated to his malignancy. The letter shows that the Veteran had tolerated treatment for his esophageal cancer extremely well with no difficulties. The Veteran had several episodes of shortness of breath and was admitted for cardiac workup and evaluation; he had a severe heart disease with very low ejection fraction but no evidence of recent myocardial infarction was identified. He had been re-admitted again shortly before his death and complained of esophagitis and terrible weakness. Dr. M.J. opined that cardiac causes were the most likely explanation for his death. A letter from B.B., M.D. dated in December 2004 shows that the Veteran passed away a few years earlier from cardiovascular problems; he had severe coronary disease and left ventricular dysfunction. Dr. B.B. also noted that the Veteran had cancer, which he opined might have been related to Agent Orange and certainly could have helped contribute to his demise. The appellant testified at a hearing in October 2006 that the Veteran's cancer was terminal and that he died from complications from his cancer. With regards to the question of whether the Veteran's cancer contributed to his cause of death, the Board finds that the competent medical evidence of record does not show that it was a contributing cause of death. The Board is persuaded by the October 1999 letter from Dr. M.J. that showed that the Veteran's death was opined to be due to cardiac causes, and was unrelated to his malignancy. Dr. M.J. provided a rationale for his opinion, and the Board also finds it probative that the record was contemporaneous with the Veteran's death. The Board also finds it persuasive to note that the Veteran had a history of heart problems prior to his death; he suffered his first myocardial infarction in 1988, followed by five vessel bypass graft surgery. Additionally, the Board finds it probative that the Veteran's death certificate did not list cancer as a contributing cause of death. The Board acknowledges Dr. B.B.'s December 2004 letter where he indicated that the Veteran's cancer certainly could have helped contribute to his demise. However, that opinion is speculative as it shows that the Veteran's cancer could have helped contribute to his death. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (by using the term "could," without supporting clinical data or other rationale, doctor's opinion simply was too speculative to provide the degree of certainty required for medical opinion). The opinion as to the Veteran's cancer contributing to his death is speculative and therefore, is not probative. Service connection may not be based on a resort to speculation or possibility, and medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102; Warren v. Brown, 6 Vet. App. 4, 6 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Bostain v. West , 11 Vet. App. 124, 127 (1998). The Board acknowledges the appellant's belief that the Veteran's death was caused by his cancer. In this instance, the appellant is competent to say that that her husband suffered from cancer. However, she is not competent to say that her husband's actual cause of death was due to cancer. In other words, there is no indication that she possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the reasons discussed above, the Board finds that the Veteran's cancer did not contribute to his cause of death. In light of that determination, the Board need not consider whether the Veteran's cancer was related to his military service. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt rule does not apply, and the appellant's claim of entitlement to service connection for the cause of the Veteran's death is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2009). II. The Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 8 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2009). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the appellant received notification prior to the initial unfavorable agency decision in January 2005. The RO's January 2005 notice letter advised the appellant what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by her, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the appellant. She was specifically told that it was her responsibility to support the claim with appropriate evidence. Finally the letter advised her of what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the appellant was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. The United States Court of Appeals for Veterans Claims (Court) recently held in Hupp v. Nicholson, 21 Vet. App. 342 (2007), that when adjudicating a claim for Dependency and Indemnity Compensation (DIC), VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime, and concluded generally, that 38 U.S.C.A. § 5103(a) notice for a DIC case 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. As discussed above, the January 2005 notice letter fully satisfied the third element of Hupp. In addition, because the Veteran was not service-connected for any disability prior to his death, notice requirements regarding elements one and two of Hupp are rendered moot, and the absence of notice regarding these elements should not prevent a Board decision. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records. The Board notes that a review of the claims file indicates that the Veteran was found to be eligible for the receipt of disability payments from the Social Security Administration (SSA) in October 1993. No records from the SSA in connection with the decision to award the Veteran benefits have been included in the claims file. However, the Board finds that a remand is not necessary to obtain the records as it is the appellant's contention that the Veteran's cancer contributed to his death, and the medical evidence shows that the Veteran's cancer was incurred after the October 1993 SSA decision. Therefore, any SSA records prior to the Veteran's incurrence of cancer have no probative value and a remand would only serve to unduly delay a decision. VA has no duty to inform or assist that was unmet. The Board acknowledges VA has not obtained a medical opinion with respect to the appellant's cause-of-death claim. But in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require the Secretary of VA to assist a claimant in obtaining a medical opinion or examination for a DIC claim, but it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a veteran, and therefore does not pertain to a DIC claim. Id. But Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008)(holding that in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim). In the present case, the Board finds that the competent medical evidence of record is sufficient to decide the claim, and that no reasonable possibility exists that a VA opinion would aid in substantiating the claim as the evidence shows that the Veteran's cancer did not contribute to his cause of death. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs